EMAGEON INC 8-K (Events or Changes Between Quarterly Reports) 2009-02-24

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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 23, 2009 (February 23, 2009)
EMAGEON INC.
(Exact name of registrant as specified in its charter)
Delaware 0-51149 63-1240138

(State or Other Jurisdiction of Incorporation) (Commission File Number) (I.R.S. Employer
Identification No.)
1200 Corporate Drive, Suite 200, Birmingham, Alabama 35242

(Address of principal executive offices) (Zip Code)
(205) 980-9222
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any
of the following provisions (see General Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01 Entry Into a Material Definitive Agreement.

On February 23, 2009, Emageon Inc., a Delaware corporation (the “Company”), entered into an Agreement and Plan of Merger (the “Merger
Agreement”) with AMICAS, Inc., a Delaware corporation (“AMICAS”), and AMICAS Acquisition Corp., a Delaware corporation and wholly-
owned subsidiary of AMICAS (“Purchaser”). Pursuant to the terms of the Merger Agreement, (i) Purchaser will commence a cash tender offer
(the “Offer”) to purchase all of the issued and outstanding shares of common stock, par value $.001 per share, of the Company (the “Shares”),
at a price per Share equal to $1.82, net in cash without interest, less any required withholding taxes (the “Offer Price”), and (ii) following the
consummation of the Offer, Purchaser will merge with and into the Company (the “Merger”), and each Share, other than Shares held by the
Company, AMICAS, Purchaser or stockholders who have validly exercised their appraisal rights under Delaware law, will be cancelled and
converted into the right to receive the Offer Price.
The Merger Agreement provides for the commencement of the Offer as promptly as practicable after the date of the Merger Agreement (but
in no event later than March 5, 2009), and the Offer will remain open for at least 20 business days. The obligation to accept for payment and
pay for the Shares tendered in the Offer is subject to certain conditions, including, among other things, the tender of a majority of the total
number of outstanding Shares, on a fully diluted basis.
Under the Merger Agreement, if, following the consummation of the Offer, a majority but fewer than 90% of the issued and outstanding
Shares are accepted for payment in the Offer, AMICAS and Purchaser have an option (the “Top-Up Option”) to purchase, at a per Share price
equal to the Offer Price, such number of newly issued Shares equal to the lowest number of Shares that, when added to the number of Shares
owned by AMICAS, Purchaser or their affiliates at the time of exercise of the Top-Up Option, will constitute one Share more than 90% of the
total Shares outstanding on a fully diluted basis.
The Merger Agreement contains customary representations and covenants, and the Merger is subject to customary closing conditions. In
addition, the Company has agreed to use commercially reasonable efforts to operate its business in the ordinary course until the Offer is
consummated. The Company has agreed not to solicit or initiate discussions with third parties regarding other proposals to acquire the
Company and to certain restrictions on its ability to respond to any such proposal. The Merger Agreement also includes customary
termination provisions, and provides that, upon the termination of the Merger Agreement, under specified circumstances, the Company will be
required to pay AMICAS, as a sole remedy in such circumstances, a termination fee of $1.6 million.
The parties have agreed that if, following completion of the Offer, AMICAS, Purchaser and any other subsidiary of AMICAS own at least
90% of the outstanding Shares, the Merger will be completed without a meeting of the Company’s stockholders, pursuant to Delaware’s
“short-form” merger statute.
A copy of the Merger Agreement is attached hereto as Exhibit 2.1 and incorporated herein by reference. The foregoing description of the
Merger Agreement is qualified in its entirety by reference to the full text of the Merger Agreement.
The Company engaged Jefferies & Company, Inc. to serve as its financial advisor and SunTrust Robinson Humphrey, Inc. (“SunTrust”) to
render an opinion to the Company’s Board of Directors as to the fairness to the holders of the Shares, from a financial point of view, of the
Offer Price. On February 22, 2009, SunTrust delivered an oral opinion to the Board of Directors that as of the date of the opinion and based on
and subject to the assumptions made, matters considered, qualifications and limitations set forth in the opinion, the Offer Price to be received
by holders of the Shares is fair to such holders from a financial point of view. The full text of the written opinion of SunTrust, dated
February 22, 2009, which sets forth assumptions made, procedures followed, matters considered and limitations on the review undertaken in
connection with the opinion, will be included in the Company’s Schedule 14D-9 in connection with the Offer described herein. SunTrust
provided its opinion for the information and assistance of the Board of Directors in connection with its consideration of the Offer and the
opinion was one of many factors taken into consideration by the Company’s Board of Directors in making its determination to approve the
Merger Agreement. The SunTrust opinion is not a recommendation to any stockholder
as to whether such stockholder should tender Shares in the Offer or how to vote with respect to the Merger or any other matter.
The Merger Agreement has been included to provide investors and security holders with information regarding its terms. It is not intended
to provide any other factual information about the Company. The representations, warranties and covenants contained in the Merger
Agreement were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such
agreement, and may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures
exchanged between the parties in connection with the execution of the Merger Agreement. The representations and warranties may have been
made for the purposes of allocating contractual risk between the parties to the agreement instead of establishing these matters as facts, and
may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors are not
third-party beneficiaries under the Merger Agreement and should not rely on the representations, warranties and covenants or any
descriptions thereof as characterizations of the actual state of facts or condition of the Company or AMICAS or any of their respective
subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations and warranties may change after the date
of the Merger Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures.
Tender and Support Agreements

In connection with the execution of the Merger Agreement, AMICAS and Purchaser entered into Tender and Support Agreements (the
“Tender Agreements”) with the following persons or stockholders (the “Stockholders”):
• Charles A. Jett, Jr., President and Chief Executive Officer
• Keith Stahlhut, Principal Operating Officer
• John W. Wilhoite, Chief Financial Officer and Treasurer
• Arthur P. Beattie, director
• Roddy J. H. Clark, director
• Fred C. Goad, director
• Bradley S. Karro, director
• Mylle H. Mangum, director
• Augustus K. Oliver, director
• John W. Thompson, director
• Benner Ulrich, director
• Hugh H. Williamson, III, Chairman of the Board of Directors
• Oliver Press Partners, LLC, an affiliate of Messrs. Oliver and Ulrich
Pursuant to the Tender Agreements, the Stockholders have agreed, among other things, to tender all of their shares pursuant to the Offer.
The directors, officers and related entities that have entered into the Tender Agreements hold, in the aggregate, 3,778,711 shares, or
approximately 18%, of the Shares outstanding as of February 23, 2009. In addition, the Tender Agreements apply to Shares acquired by these
Stockholders after February 23, 2009, including the 1,182,160 shares of Common Stock issuable to such persons upon the conversion or
exercise of derivative securities such as stock options and equity awards.
A form of the Tender Agreements is attached as Exhibit 99.1 and is incorporated herein by reference. The foregoing description of the
Tender Agreements is qualified in its entirety by reference to the full text of the form of Tender Agreement.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory
Arrangements of Certain Officers.
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On February 23, 2009, the Company entered into a Severance Agreement and General Release (the “Severance Agreement”) with Charles A.
Jett, Jr., its President and Chief Executive Officer, pursuant to which Mr. Jett’s employment with the Company will be terminated effective upon
completion of the Offer. Under the Severance Agreement, in addition to earned but unpaid base salary and other benefits accrued through the
date of termination (less all applicable statutory withholdings and deductions), Mr. Jett will be entitled to receive the following severance
benefits, which are consistent with a termination of his employment by the Company other than for “cause” following a change in control of
the Company under his existing employment agreement with the Company:
• a lump sum payment of $1,235,000, which is equal to Mr. Jett’s current monthly base salary plus the product of one-twelfth of his
target annual bonus for the year of termination multiplied by 24 months;
• a lump sum payment of $23,203, which is equal to the cost for Mr. Jett to maintain continuing family health and dental insurance for
24 months, less Mr. Jett’s share of insurance benefits under our current benefit plans;
• a lump sum payment of $8,000 for maintenance of life insurance coverage; and
• full vesting in all stock options, stock appreciation rights, restricted stock and restricted stock units that he holds as of the date of
termination.
In addition, Mr. Jett is eligible to receive a gross up payment to reimburse him for any excise tax imposed on these benefits under Internal
Revenue Code Section 4999, as well as any additional income and employment taxes resulting from such reimbursement.
Under the Severance Agreement, Mr. Jett has also agreed to a general release of the Company for all claims through the date of termination
of his employment, and the Company has agreed to release Mr. Jett from all claims based on Mr. Jett’s employment with the Company. Mr. Jett
will remain subject to the non-compete, non-solicitation, confidentiality and related provisions of his employment agreement following
termination of his employment with the Company.
The Severance Agreement replaces and supersedes that certain Severance Agreement and General Release, dated as of October 31, 2008,
between Mr. Jett and the Company, that was terminated in connection with the recent termination by the Company of its Agreement and Plan
of Merger, dated as of October 13, 2008 and amended as of December 29, 2008, by and among Health Systems Solutions, Inc., HSS Acquisition
Corp. and the Company.
The Severance Agreement is attached as Exhibit 10.1 and is incorporated herein by reference. The foregoing description of the Severance
Agreement is qualified in its entirety by reference to the full text of the Severance Agreement.
Item 8.01 Other Events.

On February 23, 2009, the Company and AMICAS issued a joint press release regarding the execution of the Merger Agreement. A copy of
the press release is furnished herewith as Exhibit 99.2.
Additional Information
This Current Report on Form 8-K is neither an offer to purchase nor a solicitation of an offer to sell shares of the Company. The Offer for the
Shares described herein has not yet been commenced. At the time the Offer is commenced, AMICAS and Purchaser intend to file with the
Securities and Exchange Commission (the “SEC”) and mail to the Company’s stockholders a Tender Offer Statement on Schedule TO and
related exhibits, including the offer to purchase, letter of transmittal and other related documents, and the Company intends to file with the SEC
and mail to its stockholders a Solicitation/Recommendation Statement on Schedule 14D-9 in connection with the transaction. These
documents will contain important information about AMICAS, Purchaser, the Company, the
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transaction and other related matters. Investors and security holders are urged to read each of these documents carefully when they are
available. Investors and security holders will be able to obtain free copies of the Tender Offer Statement, the Solicitation/Recommendation
Statement and other documents filed with the SEC by AMICAS and the Company through the web site maintained by the SEC at
www.sec.gov. In addition, investors and security holders will be able to obtain free copies of these documents by contacting the Investor
Relations departments of AMICAS or the Company.
Item 9.01. Financial Statements and Exhibits.

(d) Exhibits
Exhibit 2.1 Agreement and Plan of Merger, dated as of February 23, 2009, by and among the Company, AMICAS, Inc. and AMICAS
Acquisition Corp.*
Exhibit 10.1 Severance Agreement and General Release, dated as of February 23, 2009, by and between the Company and Charles A. Jett, Jr.
Exhibit 99.1 Form of Tender and Support Agreement
Exhibit 99.2 Press release dated February 23, 2009
* Schedules and exhibits omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees to
furnish supplementally a copy of any omitted schedule to the SEC upon request.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned, hereunto duly authorized.
Date: February 24, 2009 EMAGEON INC.

(Registrant)
By: /s/ John W. Wilhoite

John W. Wilhoite
Chief Financial Officer and Treasurer
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EXHIBIT INDEX
Exh ibit No. Description

2.1 Agreement and Plan of Merger, dated as of February 23, 2009, by and among the Company, AMICAS, Inc. and AMICAS
Acquisition Corp.*
10.1 Severance Agreement and General Release, dated as of February 23, 2009, by and between the Company and Charles A. Jett, Jr.
99.1 Form of Tender and Support Agreement
99.2 Press release dated February 23, 2009
* Schedules and exhibits omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees to
furnish supplementally a copy of any omitted schedule to the SEC upon request.
Exhibit 2.1
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER

by and among
AMICAS, INC.,
AMICAS ACQUISITION CORP.
and
EMAGEON INC.
Dated as of February 23, 2009
Table of Contents
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ARTICLE I DEFINITIONS 2
Section 1.1 Certain Definitions 2
Section 1.2 Interpretation 8
ARTICLE IA THE OFFER 8

Section 1A.1 The Offer 8
Section 1A.2 Company Consent; Schedule 14D-9 10
Section 1A.3 Stockholder Lists 11
Section 1A.4 Directors 11
Section 1A.5 Top-Up Option 12
ARTICLE II THE MERGER 13

Section 2.1 The Merger 13
Section 2.2 Effect of the Merger on Capital Stock 14
Section 2.3 Surrender of Certificates and Book-Entry Shares 14
Section 2.4 Dissenting Shares 16
Section 2.5 Treatment of Company Equity Awards 17
Section 2.6 Certificate of Incorporation and Bylaws 18
Section 2.7 Directors and Officers of Surviving Corporation 18
Section 2.8 Stockholder Approval 18
Section 2.9 Short-Form Merger 19
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY 19

Section 3.1 Organization; Power; Qualification 19
Section 3.2 Corporate Authorization; Enforceability 19
Section 3.3 Capitalization; Equity Awards 20
Section 3.4 Subsidiaries 21
Section 3.5 Required Filings and Consents 21
Section 3.6 Non Contravention 22
Section 3.7 Compliance with Laws and Permits 22
Section 3.8 Financial Reports and SEC Documents 23
Section 3.9 Undisclosed Liabilities 24
Section 3.10 Absence of Certain Changes 25
Section 3.11 Litigation 25
Section 3.12 Contracts 26
Section 3.13 Benefit Plans 28
Section 3.14 Taxes 30
Section 3.15 Intellectual Property 31
Section 3.16 Insurance 33
Section 3.17 Real Property 33
Section 3.18 Takeover Statutes; No Rights Agreement 33
Section 3.19 Opinion of Financial Advisor 34
Section 3.20 Brokers and Finders 34
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Table of Contents
(continued)
P age
Section 3.21 Interested Party Transactions 34

Section 3.22 Environmental Matters 34
Section 3.23 Employee Matters 35
Section 3.24 Certain Payments 36
Section 3.25 Suppliers 36
Section 3.26 Schedule 14D-9; Offer Documents 36
Section 3.27 No Other Representations or Warranties 36
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB 37

Section 4.1 Organization and Power 37
Section 4.2 Corporate Authorization 37
Section 4.3 Enforceability 37
Section 4.4 Required Filings and Consents 37
Section 4.5 Non Contravention 38
Section 4.6 Absence of Litigation 38
Section 4.7 Financing 38
Section 4.8 Operations of Parent and Merger Sub 38
Section 4.9 Management Agreements 39
Section 4.10 No Other Representations and Warranties 39
Section 4.11 Offer Documents; Schedule 14D-9 39
ARTICLE V COVENANTS 40
Section 5.1 Conduct of Business of the Company 40
Section 5.2 Access to Information; Confidentiality 43
Section 5.3 Limitations on Solicitation 43
Section 5.4 Notices of Certain Events 45
Section 5.5 Information Statement; Company Proxy Statement 46
Section 5.6 Employees; Benefit Plans 48
Section 5.7 Directors’ and Officers’ Indemnification and Insurance 49
Section 5.8 Reasonable Efforts 51
Section 5.9 Public Announcements 53
Section 5.10 Fees and Expenses 53
Section 5.11 Takeover Statutes 54
Section 5.12 Resignations 54
Section 5.13 Conduct of Business of Parent and Merger Sub Pending the Merger 54
Section 5.14 Control of Operations 54
Section 5.15 Tender Agreement 54
Section 5.16 Transfer Taxes 54
ARTICLE VI CONDITIONS TO THE MERGER 54

Section 6.1 Conditions to the Obligations of Each Party 54
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Table of Contents
(continued)
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ARTICLE VII TERMINATION, AMENDMENT AND WAIVER 55

Section 7.1 Termination by Mutual Consent 55
Section 7.2 Termination by Either Parent or the Company 55
Section 7.3 Termination by Parent 56
Section 7.4 Termination by the Company 56
Section 7.5 Effect of Termination 57
Section 7.6 Payment of Fees Following Termination 57
Section 7.7 Amendment 58
Section 7.8 Extension; Waiver 59
ARTICLE VIII MISCELLANEOUS 59

Section 8.1 Survival 59
Section 8.2 Governing Law 59
Section 8.3 Submission to Jurisdiction 59
Section 8.4 Waiver of Jury Trial 60
Section 8.5 Notices 60
Section 8.6 Entire Agreement 61
Section 8.7 No Third Party Beneficiaries 61
Section 8.8 Severability 62
Section 8.9 Assignment 62
Section 8.10 Specific Performance 62
Section 8.11 Time of Essence 62
Section 8.12 Counterparts; Effectiveness 62
TENDER AGREEMENT EXHIBIT A
COMPANY CERTIFICATE EXHIBIT B
COMPANY OFFICERS, DIRECTORS AND AFFILIATES EXHIBIT C
CONDITIONS TO THE OFFER ANNEX A
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AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”) is dated as of February 23, 2009 by and among AMICAS, INC., a
Delaware corporation (“Parent”), AMICAS ACQUISITION CORP., a Delaware corporation and a direct, wholly-owned subsidiary of Parent
(“Merger Sub”), and EMAGEON INC., a Delaware corporation (the “Company”).
RECITALS:
WHEREAS, the Board of Directors of each of Parent, Merger Sub and the Company have approved the acquisition of the Company by
Parent on the terms and conditions set forth in this Agreement;
WHEREAS, on the terms and subject to the conditions set forth herein, Merger Sub has agreed to commence a tender offer (the “Offer”) to
purchase all Shares (as defined below) of the Company at a price of $1.82 per Share, net to the seller in cash without interest (such price, or any
higher price as may be paid in the Offer in accordance with this Agreement, the “Offer Price”);
WHEREAS, following consummation of the Offer, on the terms and subject to the conditions set forth herein, the parties intend that Merger
Sub be merged with and into the Company with the Company surviving the Merger as a direct wholly-owned subsidiary of Parent (the
“Merger”), and each Share that is issued and outstanding immediately prior to the Effective Time (as defined below), other than Excluded
Shares and Dissenting Shares (each as defined below), will be cancelled and converted into the right to receive cash in an amount equal to the
Offer Price, all upon the terms and conditions of this Agreement, and in accordance with the General Corporation Law of the State of Delaware
(the “DGCL”);
WHEREAS, the board of directors of the Company (the “Company Board”) has approved and declared advisable this Agreement and the
transactions contemplated hereby, including the Offer and the Merger, in accordance with the DGCL, and determined to recommend that the
stockholders of the Company accept the Offer and tender their Shares to Merger Sub and, to the extent applicable, adopt the “agreement of
merger” (as such term is used in Section 251 of the DGCL) set forth in this Agreement;
WHEREAS, the board of directors of Parent and the board of directors and the stockholder of Merger Sub have, on the terms and subject
to the conditions set forth herein, unanimously approved and declared advisable this Agreement and the transactions contemplated hereby,
including the Offer and the Merger, and Parent (in its capacity as the sole stockholder of Merger Sub) has adopted the “agreement of merger”
set forth in this Agreement, in each case in accordance with the DGCL;
WHEREAS, concurrently with the execution of this Agreement, and as a condition and inducement to Parent and Merger Sub entering into
this Agreement and incurring the obligations set forth herein, Parent is entering into a tender and support agreement with the executive
officers and directors, and Affiliates thereof, of the Company in the form of Exhibit A attached hereto (the “Tender Agreement”); and
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WHEREAS, the parties desire to make certain representations, warranties, covenants and agreements in connection with the Offer and the
Merger and also to prescribe certain conditions to the Merger, as set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of the representations, warranties, covenants and agreements contained in this
Agreement, Parent, Merger Sub and the Company, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Definitions (a) For purposes of this Agreement:
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by or is under common
control with, such first Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,”
“controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities, by Contract
or otherwise.
“Business Day” means, any day, other than a Saturday, Sunday or a day on which banking institutions are generally closed in Boston,
Massachusetts.
“Company Material Adverse Effect” means any event, change, occurrence or effect (each, a “Change”), individually or when taken
together with all other Changes, that is or reasonably would be expected to (i) be materially adverse to the business, financial condition,
results of operations, assets, liabilities, or properties of the Company and its Subsidiaries, taken as a whole, other than any Change relating to
or resulting from: (A) Changes or developments in the economic, business, financial or regulatory environment affecting the industries in
which the Company and its Subsidiaries operate, so long as such Changes or developments do not adversely affect the Company and its
Subsidiaries, taken as a whole, in a materially disproportionate manner relative to other participants in the industries or markets in which they
operate, (B) any occurrence or threats of terrorist acts or an outbreak or escalation of hostilities or war (whether declared or not declared) or
any natural disaster or act of God affecting the United States, so long as each of the foregoing do not adversely affect the Company and its
Subsidiaries, taken as a whole, in a materially disproportionate manner relative to other participants in the industries or markets in which they
operate, (C) Changes in the national or world economy or national or foreign financial, credit or securities markets as a whole, so long as such
Changes do not adversely affect the Company and its Subsidiaries, taken as a whole, in a materially disproportionate manner relative to other
participants in the industries or markets in which they operate, (D) the suspension of trading in securities generally on the New York Stock
Exchange, American Stock Exchange or NASDAQ, (E) Changes in applicable Law or GAAP or the enforcement or interpretation thereof after
the date hereof, so long as such Changes do not adversely affect the Company and its Subsidiaries, taken as a whole, in a materially
disproportionate manner relative to other participants in the industries or markets in which they operate, (F) the identity of Parent or any of its
Affiliates as the acquiror of the Company, (G) the
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failure of the Company to meet any public expectations, projections, forecasts or estimates of revenues or earnings for any period ending on or
after the date hereof (it being understood, however, that any Change contributing, directly or indirectly, to such failure may, except as
provided in any of subsections (A), (B), (C), (D), (E), (F), (H), (I), (J) or (K) of this definition, be deemed to constitute or be taken into account
in determining whether a Company Material Adverse Effect has occurred), (H) any Change, in and of itself (it being understood, however, that
any facts underlying such Change may, except as provided in any of subsections (A), (B), (C), (D), (E), (F), (G), (I), (J) or (K) of this definition,
be deemed to constitute or be taken into account in determining whether a Company Material Adverse Effect has occurred), in the market price
or trading volume of the equity securities of the Company on or after the date hereof, (I) acts or omissions of Parent or the Merger Sub after
the date of this Agreement, except for such acts or omissions made at the written request of or with the express written consent of the
Company, (J) taking any action required by this Agreement, or taking or not taking any action at the request of, or with the express written
consent of, Parent, or (K) any Legal Actions, claims or investigations arising out of, relating to or resulting from that certain Deposit Escrow
Agreement dated as of October 21, 2008, as amended on December 29, 2008 (the “Deposit Escrow Agreement”), or the release of the escrowed
funds deposited thereunder, except in the event of a finding of knowing complicity, recklessness or willful wrongdoing by the Company or any
of its Subsidiaries; or (ii) materially impair the ability of the Company to consummate the Merger.
“Company Termination Fee” means $1,600,000.
“Contract” means any contract, agreement, license, note, bond, mortgage, indenture, commitment, lease or other instrument or obligation,
whether written or oral.
“Environmental Laws” means any and all applicable federal, state or local statutes, regulations, ordinances, codes or permits of the
United States, or any state, local, or municipal governmental entity, regulating or imposing liability or standards of conduct concerning
protection of the environment (including indoor air, ambient air, surface water, groundwater, land surface, subsurface strata, or plant or animal
species) or human health as affected by the environment or Hazardous Substances (including employee health and safety).
“Hazardous Substance” means all explosive or radioactive substances, materials or wastes, hazardous or toxic substances, materials or
wastes, friable asbestos, friable asbestos-containing materials, toxic mold, petroleum or any fraction thereof, and all other substances, materials
or wastes that are regulated pursuant to any applicable Environmental Law.
“Intellectual Property” means shall mean (a) all patents and patent applications, and all patents issuing thereon, including utility, model
and design patents and certificates of invention, together with all reissue patents, patents of addition, divisionals, renewals, continuations,
continuations-in-part, substitutions, additions, extensions, including supplemental protection certificates, registrations, confirmations, re-
examinations and all foreign counterparts of the forgoing which are in the process of being prepared, and all inventions and improvements
disclosed therein; (b) all know-how, including without limitation as they exist anywhere in the world, trade secrets, formulae, ideas, concepts,
inventions and invention disclosures not subject to (a) above, whether or not patentable, discoveries, innovations, improvements, results,
reports, information and data (including without limitation all business and technical information, and
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information and data relating to research, development, analytical methods, processes, formulations and compositions), research summary
data, research raw data, laboratory and programmer notebooks, methods, procedures, proprietary technology and information, operating and
maintenance manuals, engineering and other drawings and sketches, manufacturing and production processes and techniques, designs,
specifications, and blueprints; (c) customer lists, supplier lists, pricing information, cost information, business and marketing research, plans,
protocols, information and proposals, and the like not subject to (b) above; (d) registered and unregistered trademarks, service marks, trade
dress, trade names, brand names, designs, logos, commercial symbols and corporate names, and all goodwill associated therewith, and the
right to recover for past infringement thereof, heretofore or hereafter filed or having legal force in any country of the world; (e) copyrights and
all works of authorship, whether or not registered or copyrightable, and all applications, registrations, and renewals in connection therewith,
including all rights to the foregoing throughout the world; (f) databases, graphics and schematics; (g) all Software and all copyrights therein
throughout the world; (h) all application programming interfaces, access to proprietary databases or other information sources; (i) all domain
names, Internet addresses and other computer identifiers, web sites, URLs, web pages, registrations for any of the foregoing and similar rights
and items, as they exist anywhere in the world; and (j) all copies and tangible embodiments of the foregoing, whether whole or partial (in
whatever form or medium, including, but not limited to, electronic media).
“Knowledge” means, when used with respect to the Company, the actual knowledge of the Persons set forth in Section 1.1(a) of the
Company Disclosure Letter after due inquiry. “Knowledge” means, when used with respect to Merger Sub and Parent, the actual knowledge of
the Persons set forth in Section 1.1(a) of the Acquiror Disclosure Letter after due inquiry.
“Laws” means any domestic or foreign laws, statutes, ordinances, rules or regulations enacted, issued, adopted, promulgated or applied
by any Governmental Entity that are applicable to the Persons or Persons referenced.
“Liens” means any mortgages, deeds of trust, liens (statutory or other), pledges, security interests, collateral security arrangements,
charges, restrictions on voting or transfer, or other encumbrances that are material to the specific property referenced.
“Merger Sub Material Adverse Effect” means any Change that, individually or in the aggregate with all other Changes, materially impairs
the ability of Parent or Merger Sub to consummate the Offer or the Merger.
“Order” means any order, judgment, injunction, award or decree adopted or imposed by, including any consent decree, settlement
agreement or similar written agreement with, any Governmental Entity.
“Permit” means any permit, license, approval, franchise, agreement, qualification, authorization or registration of any Governmental
Entity.
“Permitted Liens” means (i) Liens for Taxes, assessments and governmental charges or levies not yet due and payable or that are being
contested in good faith and by
4
appropriate proceedings; (ii) mechanics’, carriers’, workmens’, repairmens’, materialmens’ or other Liens or security interests that secure a
liquidated amount that are being contested in good faith and by appropriate proceedings; (iii) leases, subleases and licenses (other than
capital leases and leases underlying sale and leaseback transactions); (iv) pledges or deposits to secure obligations under workers’
compensation Laws or similar legislation or to secure public or statutory obligations; (v) pledges and deposits to secure the performance of
bids, trade contracts, leases, surety and appeal bonds, performance bonds and other obligations of a similar nature, in each case in the
ordinary course of business; (vi) easements, covenants and rights of way (unrecorded and of record) and other similar restrictions of record,
and zoning, building and other similar restrictions that, with respect to any such unrecorded restrictions, are not materially adverse to the
property referenced; (vii) any other Liens that do not secure a liquidated amount, that have been incurred or suffered in the ordinary course of
business and that would not, individually or in the aggregate, have a material effect on, or materially affect the use or benefit to the owner of,
the assets or properties to which they specifically relate; (viii) licenses of or other agreements related to Intellectual Property which are not
intended to secure an obligation and which are entered into in the ordinary course of business; and (ix) such other Liens that in the aggregate
are not material.
“Person” means any individual, corporation, limited or general partnership, limited liability company, limited liability partnership, trust,
association, joint venture, Governmental Entity or other entity or group (which term will include a “group” as such term is defined in
Section 13(d)(3) of the Exchange Act).
“Representatives” means, when used with respect to Parent, Merger Sub or the Company, the directors, officers, members, managers,
employees, consultants, accountants, legal counsel, investment bankers, lenders or other financing sources, agents and other representatives
of Parent, Merger Sub or the Company, as applicable, and their respective Subsidiaries.
“Requisite Stockholder Vote” means the adoption of this Agreement by the affirmative vote of the holders of a majority of the voting
power of the shares of Common Stock outstanding and entitled to vote thereon.
“Software” means all computer programs, including operating systems, application programs, software tools, and firmware and software
imbedded in equipment, including both object code and source code.
“Subsidiary” means, when used with respect to Parent, Merger Sub or the Company, any other Person (whether or not incorporated) that
Parent, Merger Sub or the Company, as applicable, directly or indirectly owns or has the power to vote or control more than 50% of any class
or series of capital stock or other equity interests of such Person.
“Superior Proposal” means any written Takeover Proposal that the Company Board determines in its good faith judgment (after
consultation with its financial advisor and outside legal counsel) (i) to be more favorable from a financial perspective (taking into account such
legal, financial, regulatory and other aspects of such Takeover Proposal, the Offer and the Merger and other transactions contemplated by this
Agreement and such other factors, matters and issues, as are deemed relevant by the Company Board, and the anticipated timing, conditions
5
and prospects for completion of such Takeover Proposal) to the Company’s stockholders than the Offer, the Merger and the other
transactions contemplated by this Agreement (taking into account all of the terms of any proposal by Parent to amend or modify the terms of
the Offer, the Merger and the other transactions contemplated by this Agreement), except that all percentages in the definition of “Takeover
Proposal” shall be increased to “50%” and (ii) is likely (based on the good faith belief of the Company Board) to be consummated on the terms
set forth therein if accepted.
“Takeover Proposal” means any proposal or offer from any Person or group of Persons other than Parent that provides for, in a single
transaction or a series of related transactions, any direct or indirect acquisition or purchase of (i) 20% or more of the value (as determined by
the Company Board) of the consolidated assets of the Company and its Subsidiaries, (ii) beneficial ownership of securities representing 20%
or more (by vote or value) of the outstanding securities of the Company, (iii) any tender offer, self tender offer or exchange offer that if
consummated would result in any Person or group of Persons beneficially owning securities representing 20% or more (by vote or value) of
the outstanding securities of the Company, or (iv) any merger, consolidation, share exchange, business combination, recapitalization or similar
transaction involving the Company (or any Subsidiary or Subsidiaries of the Company whose business constitutes 20% or more of the net
revenues, net income or assets of the Company and its Subsidiaries, taken as a whole).
“Tax” means any and all federal, state, local, foreign and other taxes, levies, fees, duties, and similar charges (including any interest,
fines, assessments, penalties or additions to tax imposed in connection therewith or with respect thereto) imposed, assessed or collected by or
under the authority of any Governmental Entity.
“Tax Returns” means any and all reports, returns, declarations, elections, disclosures, estimates, information reports or returns or
statements required to be supplied to a taxing authority in connection with Taxes.
(b) For purposes of this Agreement, the following terms have the meanings set forth in the Sections listed below:
6
De fin e d Te rm S e ction De fin e d Te rm S e ction

Acquiror Disclosure Letter Article IV DGCL Recitals
Affiliate Transaction 3.21 Depositary 1A.5(a)
Agreement Preamble Dissenting Shares 2.4
Alternative Acquisition 5.3 (d) Dissenting Stockholder 2.4
Agreement
Antitrust Division 5.8 (a) Effective Time 2.1 (b)
Book-Entry Shares 2.2 (c) Employee Benefits 5.6 (a)
Certificate 2.2 (c) Employees 5.6 (a)
Certificate of Merger 2.1 (b) Equity Award Amounts 2.5 (d)
Change 1.1 (a) ERISA 3.13 (b)
Closing 2.1 (b) Exchange Act 3.5
Closing Date 2.1 (b) Excluded Shares 2.2 (a)
Code 2.3 (c) Foreign Merger Control 3.5
Laws
COBRA 3.13 (d) FTC 5.8 (a)
Common Stock 2.2 (a) GAAP 3.8 (c)
Company Preamble Governmental Entity 3.5
Company 401(k) Plan 5.6 (c) HSR Act 3.5
Company Benefit Plan 3.13 (a) Indemnified Parties 5.7 (a)
Company Board Recitals Indemnifying Party 5.7 (a)
Company Board 3.2 (a) Independent Directors 1A.4(c)
Recommendation
Company Certificate 2.6 (a) Information Statement 5.5 (a)
Company Disclosure Letter Article III IRS 3.13 (a)
Company Licensed 3.15 (d) Leases 3.17
Intellectual Property
Company Organizational Documents 3.6 (a) Legal Action 3.11
Company Owned Intellectual Property 3.15 (a) Material Contract 3.12 (a)
Company Proxy Statement 5.5 (a) Measurement Date 3.3 (a)
Company Restricted Share 2.5 (b) Merger Recitals
Company RSU 2.5 (c) Merger Consideration 2.2 (b)
Company SEC Documents 3.8 (a) Merger Sub Preamble
Company Stock Option 2.5 (a) Multiemployer Plan 3.13 (b)
Company Stock Plans 2.5 (a) NASDAQ 3.5
Company Stockholders 3.5 New Plans 5.6 (b)
Meeting
Confidentiality Agreement 5.2 (a) Notice Period 5.3 (d)
Continuation Period 5.6 (a) Offer Preamble
Continuing Directors 1A.4(b) Offer Conditions 1A.1(a)
D&O Insurance 5.7 (b) Offer Documents 1A.1(b)
7
De fin e d Te rm S e ction De fin e d Te rm S e ction

Offer Price Preamble Schedule TO 1A.1(b)
Old Plans 5.6 (b) SEC 3.5
Outside Date 7.2 (a) Securities Act 3.5
Parent Preamble Shares 2.2 (b)
Paying Agent 2.3 (a) Significant Suppliers 3.25
Payment Fund 2.3 (a) SRO 3.5
Pre-Closing Service 5.6 (b) SunTrust 3.19
Preferred Stock 3.3 (a) Surviving Corporation 2.1 (a)
Purchase Time 1A.5(a) Third Party Beneficiary 8.7
Real Property 3.17 Top-Up Option 1A.5(a)
Recommendation Change 5.3 (d) Top-Up Shares 1A.5(a)
Schedule 14D-9 1A.2(b) Treasury Regulations 2.3 (c)
Tender Agreement Recitals
WARN 3.23 (d)
Section 1.2 Interpretation. (a) The headings in this Agreement are for reference only and do not affect the meaning or interpretation of this
Agreement. Definitions apply equally to both the singular and plural forms of the terms defined. All references in this Agreement, the
Company Disclosure Letter and the Acquiror Disclosure Letter to Articles, Sections and Exhibits refer to Articles and Sections of, and Exhibits
to, this Agreement unless the context requires otherwise. The words “include,” “includes” and “including” are not limiting and will be deemed
to be followed by the phrase “without limitation.” The phrases “herein,” “hereof,” “hereunder” and words of similar import will be deemed to
refer to this Agreement as a whole, including the Exhibits and Schedules hereto, and not to any particular provision of this Agreement. The
word “or” will be inclusive and not exclusive unless the context requires otherwise.
(b) The parties to this Agreement have been represented by counsel during the negotiation and execution of this Agreement and waive
the application of any Laws or rule of construction providing that ambiguities in any agreement or other document will be construed against
the party drafting such agreement or other document.
ARTICLE IA
THE OFFER
Section 1A.1 The Offer.
(a) (i) Provided that this Agreement shall not have been terminated in accordance with Article VII and that none of the events set forth in
Paragraphs 1(d) — 1(g) of Annex A hereto shall exist or have occurred, Merger Sub shall (and Parent shall cause Merger Sub to), as promptly
as possible (but in no event later than March 5, 2009) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to
purchase all outstanding Shares, at the Offer Price. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for
payment and to pay for any Shares tendered pursuant to the Offer shall be subject to the satisfaction or waiver of only those conditions set
forth in Annex A (the “Offer Conditions”). Merger Sub expressly reserves the right (but shall not be obligated) at any time or from time to time
in its sole discretion to waive any Offer Condition or modify or amend the terms of the
8
Offer, including an increase in the Offer Price, except that, without the prior written consent of the Company, Merger Sub shall not
(A) decrease the Offer Price or change the form of the consideration payable in the Offer, (B) decrease the number of Shares sought pursuant
to the Offer, (C) amend or waive the Minimum Tender Condition (as defined in Annex A), (D) add to the conditions set forth on Annex A,
(E) modify the conditions set forth on Annex A in a manner adverse to the holders of Shares, (F) extend the expiration of the Offer except as
required or permitted by Section 1A.1(a)(ii) or (iii), or (G) make any other change in the terms or conditions of the Offer which is adverse to the
holders of Shares.
(ii) The initial expiration date of the Offer shall be the twentieth Business Day following (and including the day of) the commencement
of the Offer. Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for one period of time if requested and determined by
the Company of up to twenty Business Days. Subject to the terms and conditions of this Agreement, Merger Sub may, without the consent of
the Company, extend the Offer for one or more periods of time of up to twenty Business Days per extension if at any scheduled expiration of
the Offer any of the Offer Conditions are not satisfied, until such time as such Offer Conditions are satisfied or waived. Subject to the terms
and conditions of this Agreement, Merger Sub shall (A) extend the Offer for any period required by any rule, regulation, interpretation or
position of the SEC or the staff thereof or the NASDAQ applicable to the Offer, and (B) extend the Offer on one or more occasions for periods
determined by Merger Sub of up to twenty Business Days per extension if, at any scheduled expiration of the Offer, all of the Offer Conditions
have been satisfied or waived other than the Offer Condition set forth in Paragraph 1(b) of Annex A; provided, however, that Merger Sub shall
not be required to extend the Offer (1) pursuant to clause (A) or (B) beyond the Outside Date or (2) at any time that it is permitted to terminate
this Agreement pursuant to Article VII.
(iii) Subject to the terms and conditions of this Agreement and to the satisfaction or waiver by Merger Sub of the Offer Conditions as
of the time of any scheduled expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for
Shares validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable after such scheduled expiration and Merger
Sub shall, and Parent shall cause Merger Sub to, promptly accept and pay for all Shares as they are validly tendered during any subsequent
offer period. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any Shares that
Merger Sub becomes obligated to purchase pursuant to the Offer.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file or cause to be filed with the SEC a Tender Offer
Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer which shall
contain the offer to purchase and related letter of transmittal and summary advertisement and other ancillary Offer documents and instruments
pursuant to which the Offer will be made (collectively with any supplements or amendments thereto, the “Offer Documents”). Parent and
Merger Sub agree to cause the Offer Documents to be disseminated as and to the extent required by the Exchange Act. The Company and its
counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the SEC. Parent and
Merger Sub agree (i) to provide the Company with, and to consult with the Company regarding,
9
any comments that may be received from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof and prior to
responding thereto and (ii) to provide the Company with any comments or responses thereto. If at any time prior to the Closing, any
information relating to the Offer, the Merger, the Company, Parent, Merger Sub or any of their respective Affiliates, directors or officers,
should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Offer Documents, so that
the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party which
discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information
shall be filed with the SEC and disseminated to the stockholders of the Company, as and to the extent required by applicable Law or any
applicable rule or regulation of any stock exchange.
(c) Parent and Merger Sub shall not terminate the Offer prior to any scheduled expiration date without the prior written consent of the
Company, except if this Agreement is terminated pursuant to Article VII. If this Agreement is terminated pursuant to Article VII, Merger Sub
shall (and Parent shall cause Merger Sub to) promptly (and in any event within 24 hours of such termination) terminate the Offer and shall not
acquire the Shares pursuant thereto. If the Offer is terminated by Parent or Merger Sub, or this Agreement is terminated prior to the purchase
of Shares in the Offer, Merger Sub shall promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in
accordance with applicable Law, all tendered Shares that have not then been purchased in the Offer to the registered holders thereof.
Section 1A.2 Company Consent; Schedule 14D-9.
(a) The Company hereby approves of and consents to the Offer.
(b) On the date the Offer Documents are filed, the Company shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 (together with all amendments and supplements thereto, the “Schedule 14D-9”) containing, subject to Section 5.3(d), the
Company Board Recommendation. The Company hereby consents to the inclusion of the Company Board Recommendation in the Offer
Documents and to the inclusion of a copy of the Schedule 14D-9 with the Offer Documents mailed or furnished to the Company’s
stockholders. Parent and Merger Sub shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 prior to its filing
with the SEC. The Company agrees (i) to provide Parent and Merger Sub with, and to consult with Parent and Merger Sub regarding, any
comments that may be received from the SEC or its staff with respect to the Schedule 14D-9 promptly upon receipt thereof and prior to
responding thereto and (ii) to provide Parent and Merger Sub with any comments or responses thereto. If at any time prior to the Closing, any
information relating to the Offer, the Merger, the Company, Parent, Merger Sub or any of their respective Affiliates, directors or officers,
should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Schedule 14D-9, so that the
Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party which
discovers such information shall promptly notify the other party, and an appropriate amendment or supplement
10
describing such information shall be filed with the SEC and disseminated to the stockholders of the Company, as and to the extent required by
applicable Law or any applicable rule or regulation of any stock exchange.
Section 1A.3 Stockholder Lists. In connection with the Offer, the Company shall cause its transfer agent to, promptly (but in any event
within five Business Days following the date hereof), furnish Parent and Merger Sub with mailing labels, security position listings and a listing
and computer file containing the names and addresses of the record holders of the Shares as of the latest practicable date and shall furnish
Parent and Merger Sub with such information and assistance (including periodic updates of such information) as Parent or Merger Sub or their
agents may reasonably request in communicating the Offer to the record and beneficial holders of the Shares. Subject to the requirements of
applicable Law, and except for such actions as are reasonably necessary to disseminate the Offer Documents and otherwise to perform its
obligations hereunder, Merger Sub shall hold all information and documents provided to it under this Section 1A.3 in confidence in
accordance with the Confidentiality Agreement, and shall use such information and documents only in connection with the Offer, and if this
Agreement shall have been terminated Parent and Merger Sub shall deliver to the Company all such information and documents (and all copies
thereof).
Section 1A.4 Directors.
(a) Promptly upon the purchase by Merger Sub pursuant to the Offer of such number of Shares as represents at least a majority of the
then-outstanding Shares, and from time to time thereafter, Merger Sub shall be entitled to designate such number of directors, rounded up to
the next whole number, on the Company Board as will give Merger Sub representation on the Company Board equal to the product of (x) the
total number of directors on the Company Board (after giving effect to any increase in the number of directors pursuant to this Section 1A.4)
and (y) the percentage that such number of Shares so purchased bears to the total number of Shares outstanding, and the Company shall,
upon request by Merger Sub, promptly increase the size of the Company Board or use its reasonable best efforts to secure the resignations of
such number of directors as is necessary to provide Merger Sub with such level of representation and shall cause Merger Sub’s designees to
be so elected or appointed. The Company shall also cause individuals designated by Merger Sub to constitute the same percentage of each
committee of the Company Board as the percentage of the entire Company Board represented by individuals designated by Merger Sub. The
Company’s obligations to appoint designees to the Company Board shall be subject to Section 14(f) of the Exchange Act. At the request of
Merger Sub, the Company shall take all actions necessary to effect any such election or appointment of Merger Sub’s designees, including
mailing to its stockholders the information required by Section 14(f) of the Exchange Act and Rule 14f-l promulgated thereunder which, unless
Merger Sub otherwise elects, shall be so mailed together with the Schedule 14D-9. Parent and Merger Sub will supply to the Company all
information with respect to themselves and their respective officers, directors and Affiliates required by Section 14(f) of the Exchange Act and
Rule 14f-l promulgated thereunder.
(b) Following the election or appointment of Merger Sub’s designees pursuant to Section 1A.4(a) and prior to the Effective Time, any
amendment or termination of this Agreement by the Company, any extension of time for the performance of any of the obligations
11
or other acts of Parent or Merger Sub under this Agreement, any waiver of compliance with any of the agreements or conditions under this
Agreement other than those that are for the benefit of the Parent, any exercise of the Company’s rights or remedies under this Agreement, any
action to seek to enforce any obligation of Parent or Merger Sub under this Agreement (or any other action by the Company Board with
respect to this Agreement or the Merger if such other action adversely affects, or could reasonably be expected to adversely affect, any of the
holders of Shares other than Parent or Merger Sub) or any amendment to the Company’s charter or bylaws may only be authorized by, and will
require the authorization of, a majority of the directors of the Company then in office who are directors of the Company on the date hereof or
their successors as appointed by such continuing directors (the “Continuing Directors”); provided, however, that if there shall be no
Continuing Directors as a result of such individuals’ deaths, disabilities, resignations or refusal to serve, then such actions may be effected by
majority vote of the Independent Directors, or, if no Independent Directors are then in office, by a majority vote of the Company Board;
provided further, however, that for so long as there remains at least one Continuing Director, in the event any Continuing Director is unable to
continue to serve as a result of death, disability, resignation or refusal to serve the Company shall take all necessary action so that the
remaining Continuing Director(s) shall be entitled to elect or designate another Person that satisfies the applicable independence requirements
to fill such vacancy, and such Person shall be deemed to be a Continuing Director for purposes of this Agreement. The Continuing Directors
shall have, and the Parent shall cause the Continuing Directors to have, the authority to retain such counsel (which may include current
counsel to the Company or the Board or any committee thereof) and other advisors at the expense of the Company as determined by the
Continuing Directors, and the authority to institute any action on behalf of the Company to enforce performance of this Agreement.
(c) In the event that Parent’s designees are elected or appointed to the Company Board pursuant to Section 1A.4(a), until the Effective
Time, (i) the Company Board shall have at least such number of directors as may be required by the NASDAQ rules or the federal securities
laws who are considered independent directors within the meaning of such rules and laws (the “Independent Directors”) and (ii) each
committee of the Company Board that is required (or a majority of which is required) by the NASDAQ rules or the federal securities laws to be
composed solely of Independent Directors shall be so composed; provided, however, that in such event, if the number of Independent
Directors shall be reduced below the number of directors as may be required by such rules or laws for any reason whatsoever, and subject to
the last proviso of the penultimate sentence of Section 1A.4(b), the remaining Independent Director(s) shall be entitled to designate persons to
fill such vacancies who shall be deemed to be Independent Directors for purposes of this Agreement or, if no other Independent Director then
remains, the other directors shall designate such number of directors, as may be required by the NASDAQ rules and the federal securities
laws, to fill such vacancies who shall not be stockholders or Affiliates of Parent or Merger Sub, and such Persons shall be deemed to be
Independent Directors for purposes of this Agreement.
Section 1A.5 Top-Up Option.
(a) The Company hereby irrevocably grants to Merger Sub an option (the “Top-Up Option”), exercisable only after Merger Sub’s
acceptance for payment of Shares validly tendered and not withdrawn as of the expiration date of the Offer and payment for such
12
Shares in accordance with the terms of the Offer by depositing the aggregate purchase price therefor with the Depositary (the “Depositary”)
for the Offer (the date and time of such deposit with the Depositary being referred to as the “Purchase Time”), and prior to the Effective Time,
to purchase from the Company that number of Shares (the “Top-Up Shares”) equal to the number of Shares that, when added to the number of
Shares owned directly or indirectly by Parent or Merger Sub immediately following the consummation of the Offer, shall constitute one share
more than 90% of the total Shares then outstanding (after giving effect to the issuance of the Top-Up Shares) at a price per Share equal to the
Offer Price; provided, however, that in no event shall the Top-Up Option be exercisable to the extent it would be exercisable for a number of
Shares in excess of the Company’s then authorized and unissued shares of Common Stock (including as authorized and unissued shares of
Common Stock, for purposes of this Section 1A.5, any Shares held in the treasury of the Company).
(b) If Merger Sub wishes to exercise the Top-Up Option, Parent or Merger Sub shall deliver to the Company a notice setting forth (i) the
number of Top-Up Shares that Merger Sub wishes to purchase pursuant to the Top-Up Option, and (ii) the place and time at which the closing
of the purchase of the Top-Up Shares is to take place. At the closing of the purchase of the Top-Up Shares, Merger Sub shall pay the
Company (which payment, except to the extent of the par value of the Top-Up Shares, may be in the form of a note) for the Top-Up-Shares
against delivery of certificates therefor.
(c) Parent and Merger Sub understand that the Shares that Merger Sub may acquire upon exercise of the Top-Up Option will not be
registered under the Securities Act, and will be issued in reliance upon an exemption thereunder for transactions not involving a public
offering. Merger Sub agrees that the Top-Up Option and the Top-Up Shares to be acquired upon exercise thereof are being and will be
acquired for the purpose of investment and not with a view to or for resale in connection with any distribution thereof within the meaning of
the Securities Act. Any certificates evidencing Top-Up Shares may include any legends required by applicable securities laws.
ARTICLE II
THE MERGER
Section 2.1 The Merger. (a) On the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the
Effective Time, (i) Merger Sub will be merged with and into the Company, (ii) the separate corporate existence of Merger Sub will cease, and
(iii) the Company will continue its corporate existence under Delaware law as the surviving corporation in the Merger (the “Surviving
Corporation”) and a direct wholly-owned subsidiary of Parent. The Merger will have the effects set forth in this Agreement and the applicable
provisions of the DGCL.
(b) Unless otherwise mutually agreed in writing by the Company and Parent, the closing of the Merger (the “Closing”) will take place at
the offices of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., One Financial Center, Boston, Massachusetts, at 10:00 a.m., Boston,
Massachusetts time, within two (2) Business Days following the day on which all of the conditions set forth in Article VI (other than those
conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions) are satisfied
13
or, if permissible, waived in accordance with this Agreement, or another date mutually agreed to in writing by Parent and the Company. Subject
to the provisions of this Agreement, at the Closing, the Company and Parent will cause a certificate of merger or a certificate of ownership and
merger, as the case may be (in each such case, the “Certificate of Merger”) to be executed, acknowledged and filed with the Secretary of State
of the State of Delaware in accordance with the relevant provisions of the DGCL. The Merger will become effective at such time as the
Certificate of Merger has been duly filed with the Secretary of State of the State of Delaware or at such later date or time as may be agreed by
Parent and the Company in writing and specified in the Certificate of Merger in accordance with the DGCL (the date on which the Closing
actually occurs being hereinafter referred to as the “Closing Date,” and the date and time at which the Merger becomes effective being
hereinafter referred to as the “Effective Time”).
Section 2.2 Effect of the Merger on Capital Stock. At the Effective Time, as a result of the Merger and without any action on the part of
Merger Sub, Parent or the Company or any holder of any securities of Merger Sub, Parent or the Company:
(a) Cancellation of Certain Common Stock. Each share of common stock, par value $0.001 per share, of the Company (the “Common
Stock”) that is owned by Merger Sub, Parent, the Company (as treasury stock or otherwise) or any Subsidiary of the Company (each an
“Excluded Share,” and collectively the “Excluded Shares”) will automatically be cancelled and will cease to exist, and no consideration will be
delivered in exchange therefor.
(b) Conversion of Common Stock. Each share of Common Stock (each share of Common Stock, a “Share” and collectively, the “Shares”),
issued and outstanding immediately prior to the Effective Time (other than Excluded Shares and, except as provided in Section 2.4, Dissenting
Shares), will be converted into the right to receive the Offer Price in cash from the Surviving Corporation (through the Paying Agent as
provided in Section 2.3), without interest (the “Merger Consideration”).
(c) Cancellation of Shares. At the Effective Time, all Shares will cease to be outstanding, will be cancelled and will cease to exist, and, in
the case of non-certificated shares represented by book-entry (“Book-Entry Shares”), the names of the former registered holders will be
removed from the registry of holders of such shares, and, subject to Section 2.4, each holder of a certificate formerly representing any such
Shares (each, a “Certificate”) and each holder of a Book-Entry Share, in each case other than Excluded Shares and Dissenting Shares, will
cease to have any rights with respect thereto, except the right to receive the Merger Consideration in accordance with Section 2.3 and any
dividends declared with a record date prior to the Effective Time that remain unpaid at the Effective Time and that are due to such holder, in
each case without interest.
(d) Conversion of Merger Sub Capital Stock. Each share of common stock, par value $0.001 per share, of Merger Sub issued and
outstanding immediately prior to the Effective Time will be converted into one share of common stock, par value $0.001 per share, of the
Surviving Corporation.
Section 2.3 Surrender of Certificates and Book-Entry Shares(a) Paying Agent. Prior to the Effective Time, for the benefit of the holders of
Shares (other than Excluded Shares and
14
Dissenting Shares), Parent will (i) designate, or cause to be designated, a bank or trust company that is reasonably acceptable to the Company
(the “Paying Agent”), and (ii) enter into a paying agent agreement, in form and substance reasonably acceptable to the Company, with such
Paying Agent to act as agent for the payment of the Merger Consideration in respect of Certificates upon surrender of such Certificates (or
effective affidavits of loss in lieu thereof and a bond, if required, pursuant to Section 2.3(f)) and the Book-Entry Shares in accordance with this
Article II from time to time after the Effective Time. On the Closing Date, contemporaneously with the filing of the Certificate of Merger, Parent
or Merger Sub will deposit, or cause to be deposited, with the Paying Agent cash in the amount necessary for the payment of the Merger
Consideration pursuant to Section 2.2(b) upon surrender of such Certificates and Book-Entry Shares (such cash being herein referred to as the
“Payment Fund”). The Payment Fund shall not be used for any purpose other than the payment of Merger Consideration pursuant to
Section 2.2(b) and the terms of this Agreement. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving
Corporation; provided, however, that such investments shall be (i) in obligations of, or guaranteed by, the United States or any agency or
instrumentality thereof and backed by the full faith and credit of the United States, (ii) in commercial paper obligations rated A-1 or P-1 or
better by Moody’s Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or (iii) in certificates of deposit, bank repurchase
agreements or banker’s acceptances of commercial banks with capital exceeding $10 billion (based on the most recent financial statements of
such bank which are then publicly available). Any net profit resulting from, or interest or income produced by, such investments shall be the
property of and payable to the Surviving Corporation.
(b) Payment Procedures. Prior to or promptly after the Effective Time, but in no event more than three (3) Business Days after the
Effective Time, the Surviving Corporation or Parent will cause the Paying Agent to mail to each holder of record of Shares (other than Excluded
Shares and Dissenting Shares) a letter of transmittal in customary form reasonably acceptable to the Company and Parent (which shall specify
that delivery will be effected, and risk of loss and title to Certificates and Book-Entry Shares will pass, only upon proper delivery of Certificates
(or effective affidavits of loss in lieu thereof and a bond, if required, pursuant to Section 2.3(f)) or Book-Entry Shares, as the case may be, to
the Paying Agent) and instructions for use in effecting the surrender of the Certificates (or effective affidavits of loss in lieu thereof and a
bond, if required, pursuant to Section 2.3(f)) and Book-Entry Shares in exchange for the Merger Consideration. Upon the proper surrender of a
Certificate (or effective affidavit of loss in lieu thereof and a bond, if required, pursuant to Section 2.3(f)) or Book-Entry Share to the Paying
Agent, together with a properly completed letter of transmittal, duly executed, and such other documents as may reasonably be requested by
the Paying Agent, the holder of such Certificate or Book-Entry Share will be entitled to receive in exchange therefor cash in an amount equal to
the Merger Consideration (after giving effect to any required tax withholdings) for each Share (other than Excluded Shares and Dissenting
Shares) formerly represented by such Certificate or Book-Entry Share that such holder has the right to receive pursuant to this Article II, and
the Certificate or Book-Entry Share so surrendered will be cancelled. No interest will be paid or accrued on any amount payable upon due
surrender of the Certificates or Book-Entry Shares. In the event of a transfer of ownership of Shares that is not registered in the transfer
records of the Company, the Merger Consideration to be paid upon due surrender of the Certificate or Book-Entry Share may be paid to such a
transferee if the Certificate or Book-Entry Share formerly representing such Shares is presented to the Paying Agent, accompanied by all
15
documents required to evidence and effect such transfer and to evidence that any applicable stock transfer Taxes have been paid or are not
applicable.
(c) Withholding Taxes; Transfer Taxes. Parent, the Surviving Corporation or the Paying Agent will be entitled to deduct and withhold
from amounts otherwise payable pursuant to this Agreement in connection with the Offer and the Merger to any holder of Shares, Company
Stock Options, Company Restricted Shares or Company RSU’s, as the case may be, any amounts required to be deducted and withheld with
respect to such payments under the Internal Revenue Code of 1986 (the “Code”), and the rules and Treasury regulations thereunder (the
“Treasury Regulations”), or any provision of state, local or foreign Tax law. Any amounts so deducted and withheld will be timely paid to the
applicable Tax authority and will be treated for all purposes of this Agreement as having been paid to the holder of the Shares, Company Stock
Options, Company Restricted Shares or Company RSUs, as the case may be, in respect of which such deduction and withholding was made.
All stock transfer, real estate transfer, documentary, stamp, recording and other similar Taxes (including interest, penalties and additions to
any such Taxes) incurred in connection with the Offer or the Merger shall be paid by Parent, and the Company shall cooperate with Parent in
preparing, executing and filing any Tax Returns in respect of such Taxes.
(d) No Further Transfers. At the close of business on the day on which the Effective Time occurs, there will be no transfers on the stock
transfer books of the Company of Shares that were outstanding immediately prior to the Effective Time other than to settle transfers of Shares
that occurred prior to such close of business. If, after such close of business, Certificates or Book-Entry Shares are presented to the Paying
Agent, they will be cancelled and exchanged for the Merger Consideration as provided in this Article II.
(e) Termination of Payment Fund. Any portion of the Payment Fund that remains undistributed to the holders of the Certificates or Book-
Entry Shares eighteen (18) months after the Effective Time will be delivered to the Surviving Corporation, on demand, and any holder of a
Certificate or Book-Entry Share who has not theretofore complied with this Article II will thereafter look only to the Surviving Corporation and
Parent for payment of such holder’s claims for Merger Consideration. Notwithstanding the foregoing, to the fullest extent permitted by
applicable Law, none of Parent, Merger Sub, the Company, the Surviving Corporation, the Paying Agent or any other Person will be liable to
any former holder of Shares for any amount delivered to a public official pursuant to applicable abandoned property, escheat or similar Laws.
(f) Lost, Stolen or Destroyed Certificates. In the event any Certificate has been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by
such Person of a bond in customary amount and upon such terms as the Surviving Corporation may reasonably determine are necessary as
indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue, in exchange for such lost,
stolen or destroyed Certificate, the Merger Consideration pursuant to this Agreement.
Section 2.4 Dissenting Shares. Notwithstanding any provision of this Agreement to the contrary and to the extent provided under the
DGCL, any Shares outstanding immediately
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prior to the Effective Time that are held by any stockholder that has neither voted in favor of the adoption of this Agreement nor consented
thereto in writing and that has demanded properly in writing appraisal for such Shares and otherwise properly perfected and not withdrawn or
lost such stockholder’s rights in accordance with Section 262 of the DGCL (each such stockholder a “Dissenting Stockholder,” and such
Shares the “Dissenting Shares”) will not be converted into, or represent the right to receive, the Merger Consideration. Such Dissenting
Stockholders will be entitled to receive payment of the appraised value of Dissenting Shares held by them in accordance with the provisions of
such Section 262, except that all Dissenting Shares held by stockholders who have failed to perfect or who effectively have withdrawn or lost
their rights to appraisal of such Dissenting Shares pursuant to Section 262 of the DGCL will thereupon be deemed to have been converted
into, and represent the right to receive, the Merger Consideration in the manner provided in this Article II and will no longer be Dissenting
Shares. The Company will give Parent prompt notice of any written demands for appraisal, attempted withdrawals of such demands, and any
other instruments served pursuant to applicable Law received by the Company relating to stockholders’ rights of appraisal. The Company will
give Parent the opportunity to participate in and direct all negotiations and proceedings with respect to demands for appraisal. The Company
will not, except with the prior written consent of Parent, make any payment with respect to any demands for appraisal of Dissenting Shares,
offer to settle or settle any such demands or approve any withdrawal or other treatment of any such demands.
Section 2.5 Treatment of Company Equity Awards(a) As of the Effective Time, each option to acquire shares of Common Stock (a
“Company Stock Option”) under the Company Benefit Plans identified in Section 3.13(a) of the Company Disclosure Letter pursuant to which
Shares can be issued (the “Company Stock Plans”), whether vested or unvested, that is outstanding immediately prior to the Effective Time
shall become vested (a complete list of which is set forth on Section 2.5(a) of the Company Disclosure Letter as of the date of this Agreement)
with respect to the maximum number of shares of Common Stock covered thereby and shall be cancelled, and the holder of such Company
Stock Option will thereafter be entitled to receive from the Surviving Corporation an amount in cash equal to the product of (i) the excess, if
any, of the Merger Consideration over the exercise price per Share of such Company Stock Option multiplied by (ii) the maximum number of
Shares subject to such Company Stock Option with respect to which such Company Stock Option shall not theretofore have been previously
exercised.
(b) At the Effective Time, each Share subject to a restricted stock agreement under the Company Stock Plans (each, a “Company
Restricted Share”) that is outstanding immediately prior to the Effective Time (a complete list of which is set forth on Section 2.5(b) of the
Company Disclosure Letter as of the date of this Agreement) shall become fully vested and free of all restrictions as of the Effective Time and
shall, as of the Effective Time, be cancelled and converted into the right to receive the Merger Consideration in accordance with Section 2.2.
(c) As of the Effective Time, each restricted stock unit award with respect to Shares granted by the Company under the Company Stock
Plans (each, a “Company RSU”) that is outstanding immediately prior to the Effective Time (a complete list of which is set forth on
Section 2.5(c) of the Company Disclosure Letter as of the date of this Agreement) shall be cancelled, and the holder of such Company RSU
shall be entitled to receive from the Surviving Corporation an amount in cash equal to (i) the Merger Consideration multiplied by the maximum
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number of Shares subject to such Company RSU as of the Effective Time plus (ii) any dividend equivalents accrued with respect to such
Company RSU prior to the Effective Time but not yet distributed as of the Effective Time (other than any such dividend equivalents that are
held in the form of Company RSUs as of the Effective Time).
(d) The amounts payable under Section 2.5(a), Section 2.5(b) and Section 2.5(c) shall be referred to herein as the “Equity Award
Amounts.” All Equity Award Amounts shall, subject to Section 2.3(b), be paid by the Surviving Corporation as promptly as practicable
following the Effective Time, without interest, except as necessary to comply with Section 409A of the Code.
(e) The Company shall use reasonable efforts to ensure that, as of the Effective Time, the Company Stock Plans shall terminate and no
person shall have any right under the Company Stock Plans, except as set forth herein.
(f) Prior to the Effective Time, the Company Board (or a committee thereof) will adopt such resolutions and will take such other actions as
shall be required to effect the actions contemplated by this Section 2.5.
Section 2.6 Certificate of Incorporation and Bylaws.
(a) At the Effective Time, the Company’s certificate of incorporation (the “Company Certificate”), as in effect immediately prior to the
Effective Time, shall be amended and restated to read in its entirety as set forth in Exhibit B attached hereto and, as so amended, shall be the
certificate of incorporation of the Surviving Corporation until thereafter amended as provided therein or by applicable Law; and
(b) The bylaws of the Company, as in effect immediately prior to the Effective Time, shall be amended and restated to read in their
entirety as the bylaws of Merger Sub (except that the name shall change to the name of the Surviving Corporation) and, as so amended, shall
be the bylaws of the Surviving Corporation until thereafter amended as provided therein or by applicable Law.
Section 2.7 Directors and Officers of Surviving Corporation The directors and officers of Merger Sub as of the Effective Time shall, from and
after the Effective Time, be the directors and officers, respectively, of the Surviving Corporation until their successors have been duly elected
or appointed and qualified or until their earlier death, resignation or removal in accordance with the certificate of incorporation or bylaws of the
Surviving Corporation.
Section 2.8 Stockholder Approval. Unless the Merger is consummated in accordance with Section 253 of the DGCL as contemplated by
Section 2.9 of this Agreement, if permitted by applicable Law, the Company Organizational Documents and any applicable rule or regulation of
any stock exchange, as soon as practicable following the consummation of the Offer, but not earlier than twenty days after an Information
Statement is first distributed to the Company’s stockholders, Parent and Merger Sub shall, as stockholders of the Company representing the
Requisite Stockholder Vote, adopt by written consent the “agreement of merger” (as such term is used in Section 251 of the DGCL) without a
meeting of the stockholders of the Company. The Company, acting through the Company Board, shall take such actions as may be necessary
under
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Law and the Company Organizational Documents to permit the Requisite Stockholder Vote being obtained without a meeting of the
stockholders of the Company and without prior notice (except as required under the Exchange Act) by written consent signed by the holders
of Company Common Stock representing the Requisite Stockholder Vote. If required by Law, the Company Organizational Documents or any
applicable rule or regulation of any stock exchange or otherwise, the Company, acting through the Company Board, shall, in accordance with
applicable Law, duly call, give notice of, convene and hold the Company Stockholder Meeting as soon as practicable following the
consummation of the Offer for the purpose of adopting the “agreement of merger” (as such term is used in Section 251 of the DGCL) set forth
in this Agreement and include in the Proxy Statement the Company Board Recommendation; provided, that nothing herein shall be deemed to
limit Section 5.3(d). Parent and Merger Sub each agree that, at the Company Stockholders Meeting, if such Company Stockholder Meeting is
required, all of the Shares acquired pursuant to the Offer or otherwise owned by Parent or Merger Sub or Parent’s Subsidiaries will be voted in
favor of the Merger.
Section 2.9 Short-Form Merger. If, following the Offer and any subsequent offering period or the exercise of the Top-Up Option, Parent,
Merger Sub, or any other direct or indirect Subsidiary of Parent, shall own at least 90% of the outstanding shares of each class of capital stock
of the Company, each of Parent, Merger Sub and the Company shall (subject to Article VI) take all necessary and appropriate action to cause
the Merger to become effective, as soon as practicable after the consummation of the Offer, without a meeting of stockholders of the
Company, in accordance with Section 253 of the DGCL.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the letter delivered to Parent and Merger Sub by the Company concurrently with entering into this Agreement (the
“Company Disclosure Letter”), the Company represents and warrants to Parent and Merger Sub as follows:
Section 3.1 Organization; Power; Qualification . The Company and each of its Subsidiaries is a corporation, limited liability company or other
legal entity duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization. Each of the Company and
its Subsidiaries has the requisite corporate or similar power and authority to own, lease and operate its assets and to carry on its business as
now conducted. Each of the Company and its Subsidiaries is duly qualified or licensed to do business as a foreign corporation, limited liability
company or other legal entity and is in good standing (to the extent such concept is legally recognized) in each jurisdiction where the
character of the assets and properties owned, leased or operated by it or the nature of its business makes such qualification or license
necessary, except where the failure to be so qualified or licensed or in good standing would not reasonably be expected to have a Company
Material Adverse Effect.
Section 3.2 Corporate Authorization; Enforceability.
(a) The Company has the requisite corporate power and authority to enter into and to perform its obligations under this Agreement and
to consummate the Merger and the other transactions contemplated by this Agreement, subject, in the case of the Merger, to receipt of the
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Requisite Stockholder Vote. The execution, delivery and performance by the Company of this Agreement and the consummation by the
Company of the Merger and the other transactions contemplated hereby have been duly and validly authorized by the Company Board,
subject, in the case of the Merger, to receipt of the Requisite Stockholder Vote. No other corporate proceedings on the part of the Company
are necessary to approve this Agreement or to consummate the Merger or the other transactions contemplated hereby other than, in the case
of the Merger, the Requisite Stockholder Vote and the filing of the Certificate of Merger with the Secretary of State of the State of Delaware in
accordance with the provisions of the DGCL. Subject to Section 5.3(d), the Company Board has unanimously, by resolutions adopted at a
meeting duly called and held, (i) approved and declared advisable this Agreement, the Offer, the Merger and the other transactions
contemplated hereby, (ii) determined that the terms of this Agreement are fair to, and in the best interests of, the Company and its
stockholders, and (iii) resolved to recommend (A) that the Company’s stockholders accept the Offer and tender their Shares to Merger Sub
pursuant to the Offer and (B) a vote in favor of adoption of the “agreement of merger” (as such term is used in Section 251 of the DGCL)
contained in this Agreement by the stockholders of the Company (the “Company Board Recommendation”) and directed that the Agreement
be submitted to the holders of the Shares for their adoption of the plan of merger contained in this Agreement at a stockholders meeting duly
called and held for such purpose. The Requisite Stockholder Vote is the only vote of the holders of any class or series of capital stock of the
Company necessary for the Company to adopt this Agreement and for the Company to consummate the Merger and the other transactions
contemplated hereby.
Section 3.3 Capitalization; Equity Awards. (a) The Company’s authorized capital stock consists solely of 165,050,000 shares of Common
Stock and 88,415,000 shares of preferred stock, par value $0.001 per share, (the “Preferred Stock”). As of the close of business on February 17,
2009 (the “Measurement Date”), 21,449,718 shares of Common Stock were issued and outstanding (including Company Restricted Shares), all
of which are validly issued, fully paid and nonassessable, and no shares of Preferred Stock were issued or outstanding. As of the
Measurement Date, 175,757 shares of Common Stock and no shares of Preferred Stock were held in the treasury of the Company. No Shares
are held by any Subsidiary of the Company. As of the Measurement Date, Company Stock Options to purchase 2,474,883 shares of Common
Stock were outstanding and 117,461 shares of Common Stock were subject to outstanding Company RSUs. As of the date of this Agreement,
except as set forth in this Section 3.3, or in Section 3.3 of the Company Disclosure Letter, there are no outstanding shares of capital stock or
securities or other rights convertible or exchangeable into or exercisable for shares of capital stock of the Company. From the Measurement
Date through the date of this Agreement, other
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than in connection with the issuance of Shares pursuant to the exercise of Company Stock Options or settlement of Company RSUs, in each
case, outstanding as of the Measurement Date, there have been no issuances of any securities of the Company.
(b) Section 3.3 of the Company Disclosure Letter sets forth a correct and complete list, as of the date of this Agreement, of outstanding
Company Restricted Shares, Company Stock Options and Company RSUs, including the holder thereof, the date of grant, the term (in the case
of Company Stock Options), the number of Shares subject to such Company Stock Option or Company RSU, the Company Stock Plan under
which such award was granted and, where applicable, the exercise price.
(c) Except as set forth in this Section 3.3 and except pursuant to the Company Stock Plans, there are no preemptive or other outstanding
rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls or
commitments or rights of any kind that obligate the Company or any of its Subsidiaries to issue, sell, or otherwise transfer to any Person, or to
repurchase, redeem or otherwise acquire from any Person, any Shares, Preferred Stock, capital stock of any Subsidiary of the Company, or
securities or other rights convertible or exchangeable into or exercisable for shares of capital stock of the Company or any Subsidiary of the
Company.
(d) There are no voting trusts or other agreements or understandings to which the Company is a party with respect to the voting of the
Common Stock other than the Tender Agreement.
(e) There are no agreements or understandings requiring consent or approval from the holder of any Company Stock Options, Company
Restricted Shares, Company RSUs or warrants to purchase any Shares, Preferred Stock, or capital stock of the Company or any of its
Subsidiaries to effectuate the terms of this Agreement.
Section 3.4 Subsidiaries. Section 3.4 of the Company Disclosure Letter lists each Subsidiary of the Company as of the date of this
Agreement and the jurisdiction of organization of each such Subsidiary. All of the issued and outstanding shares of capital stock, voting
securities, profits interests or other equity or equity-like interests of the Company’s Subsidiaries are directly or indirectly owned, beneficially
and of record, by the Company, free and clear of all Liens, other than Liens created as a result of federal or state securities laws, Liens for
Taxes not yet due or that are being contested in good faith and Liens imposed or granted pursuant to or in connection with the Company’s
existing credit facilities or other outstanding indebtedness, and all such shares or interests have been duly authorized, validly issued and fully
paid and, in the case of shares of capital stock issued by a corporate entity formed under the laws of the United States, nonassessable, free of
any preemptive rights.
Section 3.5 Required Filings and Consents. The execution, delivery and performance of this Agreement by the Company do not, and the
consummation by the Company of the transactions contemplated by this Agreement, including the Offer and the Merger, will not, require any
consent, approval, authorization or permit of, or filing with or notification to, any international, foreign, national, federal, state, provincial or
local governmental, regulatory or administrative authority, including the SEC and any self-regulatory authority (“SRO”) (including
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The NASDAQ Global Market, or any successor entity or entities thereto (“NASDAQ”)), agency, commission or court (each, a “Governmental
Entity”), other than: (i) the filing and recordation of the Certificate of Merger with the Secretary of State of the State of Delaware; (ii) applicable
requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)
or the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”); (iii) any filings with,
and approvals from, relevant state securities administrators or related to the blue sky laws of various states; (iv) the filing with the Securities
and Exchange Commission (the “SEC”) of the Information Statement or the Company Proxy Statement relating to a special meeting of the
holders of the Company’s Common Stock to consider the adoption of this Agreement (the “Company Stockholders Meeting”); (v) the filings
or notices required by, and any approvals required under the rules and regulations of NASDAQ or other SROs; (vi) compliance with and
filings under (A) the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), if applicable, and (B) other
applicable competition or merger control Laws of any jurisdiction (the “Foreign Merger Control Laws”); and (vii) in such other circumstances
where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not reasonably
be expected to have a Company Material Adverse Effect.
Section 3.6 Non Contravention. The execution, delivery and performance of this Agreement by the Company do not, and the consummation
by the Company of the transactions contemplated by this Agreement, including the Offer and the Merger, will not:
(a) conflict with or result in any breach of any provision of the certificates of incorporation and bylaws (or the equivalent organizational
documents) of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement (the “Company Organizational
Documents”);
(b) result in any violation, or the breach of, constitute a default, give rise to any right of modification, termination, cancellation or
acceleration under, or result in the creation or imposition of a Lien under, any Material Contract to which the Company or any of its
Subsidiaries is a party or by which any of them is otherwise bound, except for such violations, breaches, defaults, or rights of termination,
cancellation or acceleration, or the imposition of Liens, as to which requisite waivers or consents have been obtained or will be obtained prior
to the Effective Time;
(c) contravene or conflict with, or result in any violation or breach of, any material Permit of the Company or any of its Subsidiaries; or
(d) violate in any material respect the provisions of any Law or Order applicable to the Company or any of its Subsidiaries.
Section 3.7 Compliance with Laws and Permits.
(a) The Company and each of its Subsidiaries are and have been since January 1, 2005 in compliance in all material respects with
applicable Laws, including, but not limited to, applicable statutes and implementing regulations administered or enforced by the United States
Food and Drug Administration.
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(b) The Company and each of its Subsidiaries holds all material Permits necessary for the ownership, operation and use of the respective
properties and assets of the Company and its Subsidiaries and the conduct of their respective businesses as currently conducted. All such
material Permits are in full force and effect and no suspension or cancellation of any of the material Permits is pending or, to the Knowledge of
the Company, threatened.
(c) Since January 1, 2006, no Governmental Entity has, to the Knowledge of the Company, initiated, and no Governmental Entity has
provided written notice to the Company or its Subsidiaries of, any proceeding or investigation into the business or operations of the Company
or any of its Subsidiaries, except, in the case of any proceeding or investigation initiated or with respect to which written notice was provided
since the date of this Agreement, as would not, individually or in the aggregate, be material to the Company and its Subsidiaries taken as a
whole.
Section 3.8 Financial Reports and SEC Documents.
(a) The Company has filed or furnished all forms, statements, certifications, reports and documents required to be filed with, or furnished
to, the SEC pursuant to the Exchange Act since January 1, 2006 (the forms, statements, reports and documents filed or furnished with the SEC
since January 1, 2006, including any exhibits and amendments thereto, the “Company SEC Documents”). Each of the Company SEC
Documents, at the time of its filing or furnishing (except as and to the extent such Company SEC Document has been modified or superseded
in any subsequent Company SEC Document filed with, or furnished to, the SEC prior to the date of this Agreement), complied in all material
respects with the applicable requirements of each of the Exchange Act and the Securities Act. As of their respective dates, except as and to
the extent modified or superseded in any subsequent Company SEC Document filed or furnished with the SEC prior to the date of this
Agreement, the Company SEC Documents did not contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. To the
Company’s Knowledge, as of the date of this Agreement, none of the Company SEC Documents is the subject of ongoing SEC review,
outstanding SEC investigation or outstanding material SEC comment.
(b) The Company maintains disclosure controls and procedures as required by Rule 13a-15 under the Exchange Act. These disclosure
controls and procedures were designed to ensure that (i) material information required to be disclosed by the Company in the reports that it
files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and
forms of the SEC, and (ii) all such information is accumulated and communicated to the Company’s management as appropriate to allow timely
decisions regarding disclosure and to make the certifications of the principal executive officer and principal financial officer of the Company
required under the Exchange Act with respect to such reports. The Company is in compliance in all material respects with all provisions of the
Sarbanes-Oxley Act of 2002, and with all provisions of the NASDAQ Marketplace Rules, which are currently applicable to it.
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(c) The Company maintains internal control over financial reporting as required by Rule 13a-15 under the Exchange Act. This internal
control over financial reporting was designed to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with accounting principles generally accepted in the United States
(“GAAP”) (and includes policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly
reflect the transactions and dispositions of the assets of the Company, (ii) provide reasonable assurance that transactions are recorded as
necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of the Company are
being made only in accordance with authorizations of management and directors of the Company, and (iii) provide reasonable assurance
regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material
effect on its financial statements.
(d) Each of the consolidated balance sheets, statements of income, changes in stockholders’ equity and cash flows of the Company and
its Subsidiaries included in or incorporated by reference into the Company SEC Documents (including any related notes and schedules)
(i) fairly presents in all material respects the consolidated financial position of the Company and its Subsidiaries as of the date of each such
balance sheet, and the results of operations and cash flows of the Company and its Subsidiaries, as the case may be, for the periods set forth
in each such consolidated statement of income, changes in stockholders’ equity and cash flows (subject, in the case of unaudited statements,
to the absence of notes and normal year-end audit adjustments), and (ii) has in each case been prepared in accordance with GAAP
consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
Section 3.9 Undisclosed Liabilities. As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any liabilities or
obligations of any nature (whether or not accrued, absolute, contingent or otherwise) that would be required by GAAP to be reflected on a
consolidated balance sheet of the Company and its Subsidiaries (including the notes thereto), other than (i) liabilities or obligations in the
amounts reflected on, or reserved against, in the Company’s consolidated balance sheet as of December 31, 2007 (or the notes thereto)
included in the Company’s financial statements, (ii) liabilities or obligations incurred in the ordinary course of business since December 31,
2007, (iii) liabilities or obligations that are not material to the financial condition of the Company and its Subsidiaries, taken as a whole, and
(iv) liabilities or obligations incurred by the Company in connection with the transactions contemplated by this Agreement, or in connection
with any Legal Action, claim or investigation described in Subsection (K) of the definition of Company Material Adverse Effect.
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Section 3.10 Absence of Certain Changes.

(a) From December 31, 2007 through the date of this Agreement, the Company and its Subsidiaries have conducted their respective
businesses in all material respects in the ordinary course of business consistent with past practice.
(b) From December 31, 2007 through the date of this Agreement, there has not been a Company Material Adverse Effect, and there has
not been any Change that would reasonably be expected to have a Company Material Adverse Effect.
(c) From December 31, 2007 through the date of this Agreement, there have not been:
(i) any amendments or changes in the Company Organizational Documents;
(ii) any declaration, setting aside or payment of any dividend or other distribution with respect to any shares of capital stock of the
Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practice;
(iii) any split, combination or reclassification of any of the capital stock or other equity interest of the Company or any of its
Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of
the capital stock or other equity interest of the Company or any of its Subsidiaries;
(iv) any material change in accounting methods, principles or practices used by the Company affecting its assets, liabilities or
business, except insofar as may have been required by a change in GAAP; or
(v) any action or event that would require Parent’s consent under Section 5.1 if such action or event had occurred after the date of
this Agreement.
(d) Except (i) as required pursuant to the terms of any Company Benefit Plan as in effect on December 31, 2007, (ii) as required to comply
with applicable Law (including Section 409A of the Code) or (iii) in the ordinary course of business consistent with past practice, since
December 31, 2007 through the date of this Agreement, there has not been any (A) grant or payment of any severance or termination benefits
to any director, officer or employee of the Company or any of its Subsidiaries, (B) material increase in the compensation, perquisites or benefits
payable to any director, officer or employee of the Company or any of its Subsidiaries, (C) grant of equity or equity-based awards that may be
settled in Shares, Preferred Stock or any other securities of the Company or any of its Subsidiaries or the value of which is linked directly or
indirectly, in whole or in part, to the price or value of any Shares, Preferred Stock or other Company securities or Subsidiary securities, or
(D) acceleration in the vesting or payment of compensation payable or benefits provided or to become payable or to be provided to any
current or former director, officer or employee of the Company or any of its Subsidiaries.
Section 3.11 Litigation. There are no material (a) claims, actions, suits, demand letters, judicial, administrative or regulatory proceedings,
arbitrations, or hearings, notices of violation
25
(each, a “Legal Action”), or, to the Company’s Knowledge, investigations before any Governmental Entity pending or, to the Knowledge of
the Company, threatened, against the Company or any of its Subsidiaries, or (b) outstanding Orders against the Company or any of its
Subsidiaries or by which any property, asset or operation of the Company or any of its Subsidiaries is bound or affected, except, in each case,
of the nature described in Subsection (K) of the definition of Company Material Adverse Effect.
Section 3.12 Contracts.
(a) As of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated under the Securities Act) to be
performed in full or in part after the date of this Agreement that has not been filed, described, or incorporated by reference in the Company
SEC Documents;
(ii) employment agreement pursuant to which an employee is entitled to receive a base salary in excess of $100,000 per year (other than
those that are terminable at will by the Company or any of its Subsidiaries, as applicable, without cost, payment or penalty);
(iii) loan or guaranty agreement, indenture or other instrument, contract or agreement under which in excess of $200,000 has been
borrowed or loaned or any note, bond or other evidence of indebtedness in excess of $200,000 has been issued, other than guarantees by the
Company of real property leases of certain of its subsidiaries;
(iv) mortgage, security agreement, conditional sales contract, capital lease or similar agreement with total payments in excess of
$200,000 per year or that effectively creates a lien, encumbrance or security interest on any material assets of the Company or any of its
Subsidiaries;
(v) any Leases requiring the Company to make payments in excess of $100,000 per year;
(vi) material partnership or joint venture agreement;
(vii) collective bargaining agreement;
(viii) agreements relating to the acquisition of any material assets or relating to the merger or consolidation of the Company or any of
its Subsidiaries with any other entity that have (A) not been consummated as of the date hereof or (B) that, if consummated as of the date
hereof, have any remaining outstanding monetary obligations in excess of $200,000;
(ix) investment banking agreement of any kind or nature whatsoever;
(x) contract, whether as licensor or licensee, for the license of any patent, know-how, trademark, trade name, service mark, copyright or
other intangible asset that
26
provides for payments by or to the Company or such Subsidiary in excess of $100,000 per year (other than licenses of commercial off-the-shelf
computer software);
(xi) contract which contains any provision that would prohibit or materially restrict the ability of the Company or any of its
Subsidiaries from engaging in business or from competing with any other parties, including, but not limited to, operating in any geographical
area;
(xii) other agreements (other than those listed in clauses (i) through (xi) above) (A) with a term longer than one (1) year from the date
hereof that involve payments by the Company and/or any of its Subsidiaries in excess of $200,000 per year; or (B) with a term less than one
(1) year from the date hereof that involve payments by the Company and/or any of its Subsidiaries in excess of $200,000, that are not
terminable without premium or penalty on less than 30 days’ notice;
(xiii) agreements or insurance policies providing for indemnification of any officer or director of the Company or any of its
Subsidiaries, other than the existing directors’ and officers’ insurance policies and the certificate of incorporation and bylaws or other
organizational documents, as currently in effect, of the Company and each of its Subsidiaries; or
(xiv) agreements evidencing a loan to any officer or director of the Company or any of its Subsidiaries, other than advances for
expenses pursuant to the Company’s standard expense reimbursement policies.
Each contract, arrangement, commitment or understanding described in clauses (i) through (xiv), filed in the Company SEC Documents, or set
forth in Section 3.12(a) of the Company Disclosure Letter, is referred to herein as a “Material Contract.”
(b) Each Material Contract is valid and binding on the Company and any of its Subsidiaries that is a party thereto, as applicable, and in
full force and effect, other than any such Material Contract that expires or is terminated after the date hereof in accordance with its terms or
amended (as permitted by Section 5.1) by agreement with the counterparty thereto (provided that, if any such Material Contract is so amended
or terminated in accordance with its terms after the date hereof, then to the extent the representation and warranty contained in this sentence is
made or deemed made as of any date that is after the date of such amendment or termination, the reference to “Material Contract” in the first
clause of this sentence shall be deemed to be a reference to such contract as so amended and shall be deemed to exclude any such terminated
contract). The Company and each of its Subsidiaries has performed in all material respects all obligations required to be performed by it to date
under each Material Contract, except where such noncompliance would not be material to the Company and its Subsidiaries, taken as a whole.
Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party to any Material Contract: (A) is in
breach of or in default under any Material Contract, or (B) knows of, or has received written notice of, the existence of any event or condition
which constitutes, or, after notice or lapse of time or both, will constitute, a material default on the part of such party under any such Material
Contract. True and complete copies of all written Material Contracts and true and correct summaries of all oral Material Contracts have been
delivered or made available to Parent.
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Section 3.13 Benefit Plans.

(a) Section 3.13(a) of the Company Disclosure Letter contains a list, as of the date of this Agreement, of each “employee benefit plan”
within the meaning of Section 3(3) of ERISA, including each Multiemployer Plan and each other stock purchase, stock option, restricted stock,
severance, retention, employment, consulting, change-of-control, bonus, incentive (equity-based or otherwise), deferred compensation,
welfare benefit, fringe benefit and other benefit plan, agreement, program, policy, commitment or other arrangement, whether or not subject to
ERISA, in each case sponsored, maintained or contributed to, or required to be sponsored, maintained or contributed to, by the Company or
any of its Subsidiaries or with respect to which the Company or any of its Subsidiaries has any material liability (each, a “Company Benefit
Plan”). No entity other than the Company and its Subsidiaries is a member of the Company’s “controlled group” (within the meaning of
Section 414 of the Code). With respect to each such Company Benefit Plan, the Company has provided or made available to Parent true,
complete and correct copies of (i) each such Company Benefit Plan; (ii) the most recent summary plan descriptions for each such Company
Benefit Plan for which a summary plan description is required by applicable Law; (iii) the three (3) most recent annual reports on Form 5500
filed with the Internal Revenue Service (“IRS”); (iv) if the plan is intended to qualify under Section 401(a) of the Code, the most recent
determination letter or opinion letter received from the IRS; (v) the most recent actuarial report and/or financial statements, to the extent that
any such reports or financial statements are required under applicable Law to be prepared with respect to such Company Benefit Plan; (vi) all
applicable nondiscrimination testing for the three (3) most recent closed Company Benefit Plan years; and (vii) any related trust agreement or
funding instrument now in effect or required in the future as a result of the transactions contemplated by this Agreement.
(b) No Company Benefit Plan is subject to Title IV of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or
Section 412 of the Code or is a Company Benefit Plan that is a “multiemployer plan” within the meaning of Section 3(37) of ERISA (a
“Multiemployer Plan”), or a plan that has two or more contributing sponsors, at least two of whom are not under common control, within the
meaning of Section 4063 of ERISA.
(c) Each Company Benefit Plan that is intended to qualify under Section 401(a) of the Code has been issued a favorable determination
letter or opinion letter by the IRS with respect to such qualification, its related trust has been determined to be exempt from taxation under
Section 501(a) of the Code and no such determination letter has been revoked nor, to the Knowledge of the Company, has revocation been
threatened. Each Company Benefit Plan has been established, funded and administered in compliance, in all material respects, with its terms
and with the applicable provisions of ERISA, the Code and other applicable Laws. All contributions required by applicable Law to each
Company Benefit Plan have been made by the Company or its Subsidiaries as of the Effective Time with respect to current or prior plan years
in all material respects or such contributions have been accrued in all material respects in accordance with GAAP.
(d) There are no Company Benefit Plans under which welfare benefits are provided to past employees or made available to present
employees of the Company and its Subsidiaries beyond their retirement or other termination of service, other than coverage
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mandated by the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), Section 4980B of the Code, Part 6 of Subtitle B of Title
I of ERISA or any similar state group health plan continuation Laws. Other than payroll practices, short-term disability or flexible spending
accounts, no material Company Benefit Plan is self-funded or funded from the general assets of the Company or its Subsidiaries.
(e) Except as provided in Section 2.5, neither the execution and delivery by the Company of this Agreement nor the consummation by the
Company of the transactions contemplated hereby (alone or in combination with any other event) would: (i) result in any payment becoming
due, or increase the amount of any compensation or benefits due, to any current or former employee of the Company or its Subsidiaries or with
respect to any Company Benefit Plan (except as required by applicable Law); (ii) increase any benefits otherwise payable under any Company
Benefit Plan; (iii) result in the acceleration of the time of payment or vesting of any such compensation or benefits, other than vesting to
comply with Section 401(a) of the Code; (iv) trigger the funding of any compensation or benefits due to any current or former employee of the
Company or its Subsidiaries (except as required by applicable Law); (v) result in any “excess parachute payment” within the meaning of
Section 280G of the Code pursuant to any Company Benefit Plan or other plan or agreement as in effect on the date of this Agreement; or
(vi) result in any payment that would be nondeductible under Code Section 162(m).
(f) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability, none of the Company, any
of its Subsidiaries, or any Company Benefit Plan, nor to the Knowledge of the Company, any “disqualified person”(as defined in Section 4975
of the Code) or “party in interest” (as defined in Section 3(14) of ERISA) with respect to any Company Benefit Plan, has engaged in any non-
exempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) with respect to any Company Benefit
Plan. With respect to any Company Benefit Plan, as of the date of this Agreement, (i) no Legal Actions (including any administrative
investigation, audit or other proceeding by the Department of Labor or the IRS but excluding routine claims for benefits in the ordinary course)
are pending or, to the Knowledge of the Company, threatened, and (ii) to the Knowledge of the Company, no events or conditions have
occurred or exist that would reasonably be expected to give rise to any such Legal Actions, except in the case of both clauses (i) and (ii), as
would not, individually or in the aggregate, reasonably be expected to result in a material liability.
(g) Each Company Benefit Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code is in compliance
with Section 409A of the Code and any Internal Revenue Service guidance issued thereunder, and to the Knowledge of the Company no
amounts under any such Company Benefit Plan are or have been subject to the interest and additional tax set forth under Code
Section 409A(a)(1)(B). The Company does not have any actual or potential obligation to reimburse or otherwise gross-up any Person for the
interest or additional tax set forth under Code Section 409A(a)(1)(B). No Company Stock Option or Company Restricted Share is subject to
Section 409A of the Code.
(h) Except where such misclassification would not result in a material liability to the Company and its Subsidiaries, taken as a whole, all
employees, independent contractors,
29
consultants, leased employees or similar non-employee classification workers of the Company or any of its Subsidiaries are properly classified
as such.
(i) Each Company Benefit Plan established or maintained for the benefit of Canadian employees has been administered in material
compliance with all applicable Laws.
(j) Other than individual agreements, obligations accrued and vested pursuant to the Company Benefit Plans or required by Laws, or as
set forth on Section 3.13(j) of the Company Disclosure Letter, each Company Benefit Plan may be amended or terminated at any time.
Section 3.14 Taxes.
(a) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been properly prepared
and timely filed and all such Tax Returns are true, correct and complete in all material respects. There are no adjustments relating to such Tax
Returns that have been proposed in writing by any Tax authority and there are no Tax liens on any of the assets for Taxes that are not
Permitted Liens. The Company has delivered or made available to Parent true and complete copies of all material federal, state, and local income
Tax Returns filed since January 1, 2006.
(b) The Company and its Subsidiaries have paid, or will timely pay, all material Taxes required to be paid by any of them shown as due
and payable on such Tax Returns except to the extent that such Taxes are being contested in good faith and the Company, or the appropriate
Subsidiary, has set aside reserves in accordance with GAAP. The Company and its Subsidiaries have provided, in all material respects, for any
Taxes that are not yet due and payable for all taxable periods on the most recent financial statements contained in the Company SEC
Documents to the extent required by GAAP or in the case of foreign entities, in accordance with generally applicable accounting principles in
the relevant jurisdiction.
(c) As of the date of this Agreement, there are no outstanding agreements extending or waiving the statutory period of limitations
applicable to any claim for, or the period for the collection, assessment or reassessment of, Taxes due from the Company or any of its
Subsidiaries for any taxable period and, to the Knowledge of the Company, no request for any such waiver or extension is currently pending.
The Company has not received any written requests for information by any Tax authority that are currently outstanding that could adversely
affect the Taxes of the Company or any of its Subsidiaries; and there are no proposed material reassessments received in writing by the
Company of any property owned by the Company or any of its Subsidiaries or other proposals that could materially increase the amount of
any Tax to which the Company or any of its Subsidiaries would be subject.
(d) As of the date of this Agreement, no audit or other proceeding by any Governmental Entity is pending or, to the Knowledge of the
Company, threatened with respect to any Taxes due from or with respect to the Company or any of its Subsidiaries.
(e) Neither the Company nor any of its Subsidiaries is a party to any Tax sharing or similar Tax agreement (other than an agreement
exclusively between or among the
30
Company and its Subsidiaries) pursuant to which it will have any obligation to make any payments on account of Taxes after the Closing Date.
Neither the Company nor any of its Subsidiaries has any liability as a result of being or having been, before the Closing Date, a member of an
affiliated, consolidated, combined or unitary group, other than a group of which the Company and its Subsidiaries are currently members, or as
a result of a Tax sharing, Tax indemnity or Tax allocation agreement.
(f) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury
Regulation Section 1.6011-4, other than a transaction exempted from the reporting requirements of such Regulation.
(g) The Company and its Subsidiaries have timely withheld and paid all material Taxes required to have been withheld and paid in
connection with amounts paid or owing to any employee, creditor, independent contractor, shareholder, member or other third party.
(h) The Company has not been a United States real property holding corporation within the meaning of section 897(c)(2) of the Code
during the applicable period identified in section 897(c) (1)(A)(ii) of the Code.
(i) The Company has not distributed stock of another Person or has had its stock distributed by another Person in a transaction that was
purported or intended to be governed in whole or in part by section 355 or 361 of the Code.
Section 3.15 Intellectual Property.
(a) Section 3.15(a) of the Company Disclosure Letter sets forth a list of all registered Intellectual Property and material unregistered
Intellectual Property which is owned by the Company or its Subsidiaries and which is material to the conduct of the business of the Company
and its Subsidiaries, the “Company Owned Intellectual Property”).
(b) The Company or one or more of its Subsidiaries owns or otherwise has a valid right to use all Intellectual Property necessary to
conduct the business of the Company and its Subsidiaries as such is conducted as of the date of this Agreement and as currently expected by
the Company to be conducted.
(c) Except as would not reasonably be expected to have a Company Material Adverse Effect, all registered Company Intellectual Property
has been duly registered and/or filed, as applicable, with each applicable Governmental Entity in each applicable jurisdiction, all necessary
affidavits of continuing use have been filed, and all necessary maintenance fees have been paid to continue all such rights in effect.
(d) To the Knowledge of the Company, none of the Company or its Subsidiaries has infringed upon or otherwise violated, or is infringing
upon or otherwise violating, the Intellectual Property rights of any third party. To the Knowledge of the Company, no Person or any product
or service of any Person is infringing upon or otherwise violating any Company Owned Intellectual Property. No licensor of any Intellectual
Property which is used by the Company or its Subsidiaries and which is material to the conduct of the business of the
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Company or its Subsidiaries (“Company Licensed Intellectual Property”) has notified the Company or any of its Subsidiaries in writing that
any Person or any product or service of any Person is infringing upon or otherwise violating in any material respect any Company Licensed
Intellectual Property.
(e) There are no outstanding Legal Actions instituted or pending against the Company or any of its Subsidiaries or which, to the
Knowledge of the Company, have been threatened in writing, with respect to the infringement or violation by the Company or any of its
Subsidiaries in any material respect of the Intellectual Property rights of a third party. The Company has not been notified in writing of any
possible infringement or other violation, in any material respect, by the Company or any of its Subsidiaries of the Intellectual Property rights of
any third party.
(f) The Company and its Subsidiaries have taken commercially reasonable actions to protect, preserve and maintain the Company Owned
Intellectual Property and to maintain the confidentiality and secrecy of their confidential information, trade secrets and proprietary information
under applicable Law.
(g) To the extent that any Software that is owned by a third party is distributed to customers of the Company or any of its Subsidiaries
together with the Company Owned Intellectual Property, such third party rights have been identified in Section 3.15(g) of the Company
Disclosure Letter, all necessary licenses have been obtained for, and no royalties or payments are due from the Company or any of its
Subsidiaries in respect of, such Software.
(h) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) none of the source code of the Company
or any of its Subsidiaries has been published or disclosed by the Company or any of its Subsidiaries except pursuant to a non-disclosure
agreement, and (ii) except for source code provided to third party developers to make modifications or derivative works for the benefit of the
Company or any of its Subsidiaries, no licenses or rights have been granted to a third person to distribute, or to otherwise use to create
derivative works, the source code for any Software that is used by the Company or that is commercially available from the Company or any of
its Subsidiaries.
(i) Except as set forth on Section 3.15 of the Company Disclosure Letter, the Company Owned Intellectual Property and the Company
Licensed Intellectual Property are owned or licensed, as the case may be, free and clear of any Liens.
(j) Except as would not reasonably be expected to have a Company Material Adverse Effect, the incorporation of any so-called “open
source” software into any product of the Company or any Subsidiary has not resulted in the license to a third party of any Intellectual
Property owned by the Company or any Subsidiary used in conjunction with such open source software.
(k) Assuming that all required consents are obtained as set forth in Section 6.2(d) of the Company Disclosure Letter, the consummation
of the transactions contemplated by this Agreement will not result in the loss or impairment of the Company or any Subsidiary’s right to own
or use any of the Company Owned Intellectual Property or, except as would not
32
reasonably be expected to have a Company Material Adverse Effect, Company Licensed Intellectual Property.
(l) Except as would not reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any Subsidiary has
any liability under its contracts with customers for replacement or repair of any product of the Company or any Subsidiary, except under the
warranty provisions and the support and maintenance provisions in such contracts (copies of which have been delivered to Parent).
Section 3.16 Insurance. Section 3.16 of the Company Disclosure Letter lists each material insurance policy maintained by the Company or its
Subsidiaries and the respective expiration dates thereof, and such policies are in full force and effect as of the date of this Agreement. The
Company and its Subsidiaries are in compliance in all material respects with respect to their obligations under any of such insurance policies.
Since January 1, 2006, neither the Company nor any of its Subsidiaries has received any written notice of cancellation, termination or material
increase in premiums of any such policy or rejection of any material claim thereunder, nor, to the Knowledge of the Company as of the date
hereof, is there any basis for such cancellation, termination or material increase. The Company has received from its current directors and
officers’ liability insurance program insurers, i.e., Chubb, Liberty Mutual Insurance Company, and AXIS, a forty-five day extension through
and until April 14, 2009 at 12:01 a.m. for each of the four policies currently in place and previously scheduled to expire on March 1, 2009 at
12:01 a.m. This forty-five day extension does not constitute an extended reporting period, rather it is an extension of the policy period for the
Company’s directors and officers’ liability insurance program that commenced on February 8, 2008.
Section 3.17 Real Property. Section 3.17 of the Company Disclosure Letter lists any and all (i) real property owned by the Company and its
Subsidiaries (the “Real Property”) and (ii) leases (including subleases) of real property and any modifications or amendments thereto (the
“Leases”), and with respect to the Leases (A) the rent (base and additional) due and payable thereunder and (B) the respective tenant’s
proportionate share for taxes and operating expenses. The Company and each of its Subsidiaries have good, valid and marketable fee title to
the Real Property, free and clear of all Liens, except for Permitted Liens and as expressly set forth on Section 3.17 of the Company Disclosure
Letter, and good and valuable leasehold interests in the Leases. The Leases are in good standing, valid and effective against the Company and
each of its Subsidiaries, as applicable, and there is not under any Lease any existing material default by the Company or any of its Subsidiaries
or, to the Company’s Knowledge, the counterparties thereto, or any event which, with notice or lapse of time or both, would become a material
default by the Company or any of its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company and its
Subsidiaries have not entered into any agreements for the sale of the Real Property and will not enter into any such agreements without
Parent’s and Merger Sub’s consent.
Section 3.18 Takeover Statutes; No Rights Agreement(a) Assuming the accuracy of the representations and warranties set forth in
Section 4.10, the Company and the Company Board have taken all necessary action, if any, in order to render inapplicable any control share
acquisition, business combination or other similar anti-takeover provision under the Company Certificate or the laws of Delaware or any other
jurisdiction that is, or is reasonably likely to
33
become, applicable to the Company as a result of the transactions contemplated by this Agreement, including the Merger.
(b) The Company has not adopted a stockholder rights plan or similar arrangement relating to accumulations of beneficial ownership of
Common Stock upon a change in control of the Company.
Section 3.19 Opinion of Financial Advisor. SunTrust Robinson Humphrey, Inc. (“SunTrust”) has delivered to the Company Board, its
written opinion (or oral opinion confirmed in writing) to the effect that, as of the date of this Agreement, the Merger Consideration is fair to the
stockholders of the Company from a financial point of view.
Section 3.20 Brokers and Finders. Other than SunTrust and Jefferies & Company, Inc., no broker, finder or investment banker is entitled to
any brokerage, finder’s or other fee or commission in connection with the Merger or the other transactions contemplated by this Agreement
based upon arrangements made by or on behalf of the Company or any of its Subsidiaries.
Section 3.21 Interested Party Transactions. Except for employment Contracts entered into in the ordinary course of business consistent
with past practice or filed or incorporated by reference as an exhibit to a Company SEC Document, Section 3.21 of the Company Disclosure
Letter sets forth a list, as of the date hereof, of the Contracts or other arrangements under which the Company or any of its Subsidiaries has
any existing or future liabilities required to be reported by the Company pursuant to Item 404 of Regulation S-K promulgated by the SEC (each
such Contract or other arrangement, an “Affiliate Transaction”).
Section 3.22 Environmental Matters.
(a) Neither the Company nor any of its Subsidiaries is the subject of any federal, state, local or foreign investigation, decree, order or
judgment, and neither the Company nor any of its Subsidiaries has received any written notice or claim, or entered into any negotiations or
agreements with any person, relating to any material liability or remedial action under any applicable Environmental Laws;
(b) The Company and its Subsidiaries have materially complied and currently materially comply with all Environmental Laws;
(c) Neither the Company nor any of its Subsidiaries has manufactured, treated, stored, disposed of, arranged for or knowingly permitted
the disposal of, generated, handled or released any Hazardous Substance or, to the Knowledge of the Company, owned or operated any
property or facility, in each case in a manner that has given or would reasonably be expected to give rise to any material liability under
Environmental Laws;
(d) To the Knowledge of the Company, no Hazardous Substances have been released or otherwise come to be located at any property or
facility owned or operated by the Company or any of its Subsidiaries in a manner that is in material violation of any Environmental Law or that
has given or would reasonably be expected to give rise to any liability under Environmental Laws; and
34
(e) To the Knowledge of the Company, the Company and each of its Subsidiaries holds and is in compliance, in all material respects, with
all Permits required to conduct its business and operations under all applicable Environmental Laws.
Section 3.23 Employee Matters(a) As of the date hereof, there are no labor or employment claims, grievances, arbitration demands, actions,
suits or disputes pending or, to the Knowledge of the Company, threatened involving the Company or any of its Subsidiaries and any of their
employees or former employees, other than those that would not reasonably be expected to have a Company Material Adverse Effect. Except
as set forth on Section 3.23(a) of the Company Disclosure Letter, there has been: (i) to the Knowledge of the Company, no labor union
organizing or attempting to organize any employee of the Company or any of its Subsidiaries into one or more collective bargaining units; and
(ii) no labor dispute, strike, work slowdown, work stoppage, picketing, or lock out or other collective labor action by or with respect to any
employees of the Company or any of its Subsidiaries pending or occurring since January 1, 2006 or, to the Knowledge of the Company,
threatened against the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries is a party to, or bound by, any
collective bargaining agreement or other agreement with any labor organization applicable to the employees of the Company or any of its
Subsidiaries and no such agreement is currently being negotiated.
(b) The Company and its Subsidiaries (i) are in compliance in all material respects with all applicable Laws, regulations, policies and
procedures, and collective bargaining and other contractual obligations respecting employment and employment practices, terms and
conditions of employment, including all such obligations relating to health and safety, discrimination, harassment, immigration, compensation,
and wages and hours, and are not engaged in any unfair labor practice as defined by the National Labor Relations Act, (ii) are not liable in any
material respect for any arrears of wages or any penalty for failure to comply with any of the foregoing and (iii) are not liable for any material
payment to any trust or other fund or to any governmental or administrative authority, with respect to unemployment compensation benefits,
social security or other benefit or obligations for employees (other than routine payments to be made in the ordinary course of business and
consistent with past practice).
(c) To the Knowledge of the Company, no employee of the Company or any of its Subsidiaries has provided or is providing information
to any law enforcement agency regarding the commission or possible commission of any crime or the violation or possible violation of any
applicable Law involving the Company or any of its Subsidiaries. None of the Company, any of its Subsidiaries or, to the Knowledge of the
Company, any officer, employee, contractor, subcontractor or agent of the Company or any of its Subsidiaries has discharged, demoted,
suspended, threatened, harassed or in any other manner discriminated against an employee of the Company or any of its Subsidiaries in the
terms and conditions of employment because of any act of such employee described in 18 U.S.C. Section 1514A(a).
(d) Neither the Company nor any of its Subsidiaries: (i) has had since January 1, 2006 any mass layoff of employees, as defined under the
Workers Adjustment and Retraining Notification Act (“WARN”) (or other similar state law); or (ii) has implemented since January 1, 2006 any
early mass retirement or mass separation program.
35
Section 3.24 Certain Payments. Neither the Company nor, to the Knowledge of the Company, any of the directors, executive officers, agent
or employees of the Company or any of its Subsidiaries acting in his or her capacity as a director, executive officer, agent or employee of the
Company or any of its Subsidiaries (a) has used or is using any corporate funds for any illegal contributions, gifts, entertainment or other
unlawful expenses relating to political activity, (b) has used or is using any corporate funds for any direct or indirect unlawful payments to any
foreign or domestic governmental officials or employees, (c) has violated or is violating any provision of the Foreign Corrupt Practices Act of
1977, (d) has established or maintained, or is maintaining, any unlawful fund of corporate monies or other properties, or (e) has made any bribe,
unlawful rebate, payoff, influence payment, kickback or other unlawful payment of any nature.
Section 3.25 Suppliers Section 3.25 of the Company Disclosure Letter sets forth the 10 largest suppliers of the Company and its
Subsidiaries, taken as a whole, for the year ended December 31, 2008 based on aggregate payments made to such suppliers by the Company
and its Subsidiaries during such period (the “Significant Suppliers”). To the Knowledge of the Company, since December 31, 2008 and through
the date hereof, neither the Company nor any of its Subsidiaries has received from any of the Significant Suppliers any written notice of
termination or material alteration of any contract or business relationship governed thereby.
Section 3.26 Schedule 14D-9; Offer Documents. None of the information supplied or to be supplied by or on behalf of the Company or any
Affiliate of the Company for inclusion in the Offer Documents will, at the times such documents are filed with the SEC and are mailed to
stockholders of the Company, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under which they are made, not misleading. The Schedule 14D—9 will
not, at the time the Schedule 14D—9 is filed with the SEC and at all times prior to the Purchase Time, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances
under which they are made, not misleading. Notwithstanding the foregoing, no representation or warranty is made by the Company with
respect to information supplied in writing by or on behalf of Parent, Purchaser or any Affiliate of Parent or Purchaser expressly for inclusion in
the Offer Documents or the Schedule 14D-9. The Schedule 14D—9 will, at the time the Schedule 14D-9 is filed with the SEC, at the time it is
mailed to the stockholders of the Company, and at the time any amendment or supplement thereto is filed with the SEC, comply as to form in all
material respects with the provisions of the Exchange Act and the rules and regulations of the SEC thereunder.
Section 3.27 No Other Representations or Warranties. Except for the representations and warranties contained in this Article III or in any
certificates delivered by the Company in connection with the Closing, each of Parent and Merger Sub acknowledges that neither the Company
nor any Person on behalf of the Company makes or has made any other express or implied representation or warranty with respect to the
Company or any of its Subsidiaries or with respect to any other information provided or made available to Parent or Merger Sub in connection
with the transactions contemplated by this Agreement.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Except as set forth in the letter delivered by Parent and Merger Sub to the Company concurrently with the execution of this Agreement (the
“Acquiror Disclosure Letter”), Parent and Merger Sub hereby jointly and severally represent and warrant to the Company as follows:
Section 4.1 Organization and Power. Parent is a corporation, duly organized, validly existing and in good standing under the Laws of the
State of Delaware and has the requisite power and authority to own, lease and operate its assets and properties and to carry on its business as
now conducted and as it will be conducted through the Effective Time. Merger Sub is a corporation, duly organized, validly existing and in
good standing under the Laws of the State of Delaware and has the requisite power and authority to own, lease and operate its assets and
properties and to carry on its business as now conducted and as it will be conducted through the Effective Time.
Section 4.2 Corporate Authorization. Parent and Merger Sub each have the requisite corporate or other power and authority to enter into
and to perform their respective obligations under this Agreement and to consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement by each of Parent and Merger Sub and the consummation by each of Parent and Merger Sub of
the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of each of Parent
and Merger Sub.
Section 4.3 Enforceability. This Agreement has been duly executed and delivered by each of Parent and Merger Sub and, assuming the due
authorization, execution and delivery of this Agreement by the Company, constitutes a legal, valid and binding agreement of each of Parent
and Merger Sub, enforceable against each of Parent and Merger Sub in accordance with its terms, except to the extent that the enforcement
thereof may be limited by (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar Laws now or
hereafter in effect relating to creditor’s rights generally, (b) general principles of equity (regardless of whether such enforcement is considered
in a proceeding at law or in equity), and (c) the remedy of specific performance and injunctive and other forms of equitable relief being subject
to the discretion of the Governmental Entity before which any enforcement proceeding therefor may be brought.
Section 4.4 Required Filings and Consents. The execution, delivery and performance of this Agreement by each of Parent and Merger Sub
do not, and the consummation by each of Parent and Merger Sub of the transactions contemplated by this Agreement, will not, require any
consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity other than: (a) the filing and recordation
of the Certificate of Merger with the Secretary of State of the State of Delaware; (b) applicable requirements of the Exchange Act or the
Securities Act; (c) compliance with and filings under (i) the HSR Act, if applicable, and (ii) any applicable requirements of any Foreign Merger
Control Law; and (d) in such other circumstances where the failure to obtain such consents, approvals, authorizations or permits, or to make
such filings or notifications, would not reasonably be expected to have a Merger Sub Material Adverse Effect.
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Section 4.5 Non Contravention. The execution, delivery and performance of this Agreement by each of Parent and Merger Sub do not and
the consummation by each of Parent and Merger Sub of the transactions contemplated by this Agreement, including the Merger, will not:
(a) conflict with, or result in any breach of any provision of the certificate of incorporation, bylaws or other organizational documents of
either Parent or Merger Sub;
(b) result in any violation, or the breach of, or constitute a default under, give rise to any right of modification, termination, cancellation
or acceleration under, or result in the creation or imposition of a Lien, under any Contract to which Parent or Merger Sub is a party or by which
any of them is otherwise bound, except for such violations, breaches, defaults, or rights of termination, cancellation or acceleration, or the
imposition of Liens as to which requisite waivers or consents have been obtained or will be obtained prior to the Effective Time or which
would not reasonably be expected to have a Merger Sub Material Adverse Effect;
(c) contravene or conflict with, or result in any violation or breach of, any Permit of Parent or Merger Sub except as would not reasonably
be expected to have a Merger Sub Material Adverse Effect; or
(d) violate the provisions of any Law or Order applicable to Parent or Merger Sub, except for any such violations that would not
reasonably be expected to have a Merger Sub Material Adverse Effect.
Section 4.6 Absence of Litigation. As of the date of this Agreement, there is no Legal Action pending, or to the Knowledge of Parent,
threatened, against Parent or any of its Affiliates before any Governmental Entity that would or seeks to materially delay the consummation of
the Offer or the Merger or otherwise prevent or materially delay Parent or Merger Sub from performing their obligations hereunder. As of the
date hereof, neither Parent nor any of its Affiliates is subject to any continuing order of, consent decree, settlement agreement or other similar
written agreement with, any Governmental Entity, or any order, judgment, injunction or decree of any Governmental Entity that would or seeks
to prevent or materially delay the consummation of the Offer or the Merger or otherwise prevent or materially delay Parent or any of its
Affiliates from performing their obligations hereunder.
Section 4.7 Financing.
At the date hereof, Parent and Merger Sub have, and at the Purchase Time and at the Closing, Parent and Merger Sub will have, immediately
available funds sufficient to pay the aggregate Offer Price or Merger Consideration, as the case may be, and any other payments contemplated
by this Agreement and to pay all fees and expenses of Parent and Merger Sub related to the Offer, the Merger or any other transactions
contemplated by this Agreement.
Section 4.8 Operations of Parent and Merger Sub Merger Sub was formed solely for the purpose of engaging in the transactions
contemplated by this Agreement and has not engaged in any business activities or conducted any operations other than in connection with
the transactions contemplated by this Agreement.
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Section 4.9 Management Agreements. Except as contemplated in this Agreement, there are no Contracts, understandings or arrangements
between Parent or Merger Sub or any of their Affiliates, on the one hand, and any member of the Company’s management or the Company
Board, on the other hand. Neither Parent nor Merger Sub, alone or together with any other Person, has been at any time, or became, an
“interested stockholder” or has taken any action that would cause any anti-takeover statute under the DGCL to be applicable to this
Agreement, the Merger or any other transaction contemplated by this Agreement.
Section 4.10 No Other Representations and Warranties. Except for the representations and warranties contained in this Article IV or in any
certificates delivered by Parent or Merger Sub in connection with the Closing, the Company acknowledges that neither Parent, Merger Sub nor
any Person on behalf of Parent or Merger Sub makes or has made any other express or implied representation or warranty with respect to
Parent or Merger Sub or with respect to any other information provided or made available to the Company in connection with the transactions
contemplated by this Agreement.
Section 4.11 Offer Documents; Schedule 14D-9. (a) The Offer Documents will not, at the times such documents are filed with the SEC and
are mailed to stockholders of the Company, contain any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading.
Notwithstanding the foregoing, no representation or warranty is made by the Parent with respect to information supplied in writing by or on
behalf of the Company or any Affiliate of the Company expressly for inclusion in the Offer Documents. The Offer Documents will, at the time
the Offer Documents are filed with the SEC, at the time they are mailed to the stockholders of the Company, and at the time any amendment or
supplement thereto is filed with the SEC, comply as to form in all material respects with the provisions of the Exchange Act and the rules and
regulations of the SEC thereunder.
(b) None of the information supplied or to be supplied by or on behalf of the Parent or any Affiliate of the Parent for inclusion in the
Schedule 14D-9 will, at the times such document is filed with the SEC and at all times prior to the Purchase Time, contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading.
(c) The information supplied by Parent and Merger Sub expressly for inclusion in the Company Proxy Statement will not contain at the
time the Company Proxy Statement is first mailed to stockholders of the Company, or at the time of the Company Stockholders Meeting, any
untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, Parent and Merger Sub
make no representation or warranty with respect to any information supplied in writing by or on behalf of the Company that is contained in the
Company Proxy Statement or any amendment or supplement thereto.
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ARTICLE V
COVENANTS
Section 5.1 Conduct of Business of the Company. Except as expressly contemplated by this Agreement, as set forth in Section 5.1 of the
Company Disclosure Letter or otherwise required by Law, without the prior written consent of Parent (which shall not be unreasonably
withheld or delayed), from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance
with Article VII, the Company will, and will cause each of its Subsidiaries to, (x) conduct its operations, in all material respects, in the ordinary
course of business, and (y) use its commercially reasonable efforts to: maintain and preserve intact its business organization, keep available
the services of its current officers, employees, consultants and independent contractors, and preserve, in all material respects, the Company’s
goodwill and its current relationships with material customers, licensees and suppliers and other persons and entities with which the Company
has material business relations. Without limiting the generality of the foregoing, except with the prior written consent of Parent (which shall
not be unreasonably withheld or delayed), as expressly contemplated by this Agreement or as set forth in Section 5.1 of the Company
Disclosure Letter or otherwise required by Law, from the date of this Agreement until the earlier of the Effective Time or the termination of this
Agreement in accordance with Article VII, the Company will not, and will cause each of its Subsidiaries not to, directly or indirectly, take any
of the following actions:
(a) amend the Company Organizational Documents;
(b) declare, set aside, or pay any dividend or make any other distribution with respect to any shares of its capital stock or otherwise make
any payments to stockholders in their capacity as such; provided, however, that this Section 5.1(b) shall not apply to dividends or
distributions paid by a Subsidiary to the Company or any other Subsidiary of the Company in the ordinary course of business;
(c) (i) split, combine, subdivide or reclassify its capital stock, (ii) purchase, redeem, or otherwise acquire any shares of its capital stock, or
any securities or other rights convertible or exchangeable into or exercisable for any shares of its capital stock, other than (A) the acquisition
by the Company of shares of Common Stock in connection with the surrender of shares of Common Stock by holders of Company Stock
Options in order to pay the exercise price of the Company Stock Options, (B) the withholding of shares of Common Stock to satisfy Tax
obligations with respect to awards granted pursuant to the Company Stock Plans, (C) the acquisition by the Company of Company Stock
Options, Company Restricted Shares and Company RSUs in connection with the forfeiture of such awards, or (D) the acquisition on the open
market by the trustee of the Company’s 401(k) Plan of shares of Common Stock in order to satisfy participant investment elections under the
Company’s 401(k) Plan, (iii) issue, grant, deliver, sell, pledge, transfer, convey, dispose of or permit the imposition of any Lien or other
encumbrance on any shares of its capital stock, any options, warrants, securities exercisable, exchangeable or convertible into any shares of
its capital stock or any outstanding stock appreciation rights, stock awards, restricted stock, restricted stock awards, performance units,
phantom stock, profit participation or similar rights with respect to the Company or any of its Subsidiaries or any shares of the Company’s
capital stock, other than (A) pursuant to the exercise of Company Stock Options and settlement of Company RSUs outstanding as of the date
of this
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Agreement, (B) as required pursuant to any Company Benefit Plan or (C) the sale by the trustee of the Company’s 401(k) Plan of shares of
Common Stock in order to satisfy participant investment elections under the Company’s 401(k) Plan, or (iv) enter into any Contract,
understanding or arrangement with respect to the sale, voting, pledge, encumbrance, disposition, acquisition, transfer, registration or
repurchase of its capital stock or such securities or other rights, except in each case as permitted under Section 5.1(d);
(d) except (i) in the case of officers, employees, independent contractors and consultants of the Company or its Subsidiaries in the
ordinary course of business or as required pursuant to existing written agreements, (ii) as required pursuant to the terms of any Company
Benefit Plan (or related trust agreement), (iii) as otherwise expressly permitted by this Agreement, or (iv) with the prior written consent of
Parent (which shall not be unreasonably withheld or delayed), (A) increase the compensation or benefits payable to any directors, officers or
employees of the Company or its Subsidiaries or enter into any new bonus or incentive arrangement with directors, officers or employees of
the Company or its Subsidiaries, (B) grant or pay any severance or termination pay to any of the directors, officers or employees of the
Company or its Subsidiaries, (C) enter into any new employment or severance agreement with any directors, officers or employees of the
Company or its Subsidiaries, (D) establish, adopt, enter into, amend or take any action to accelerate rights or fund benefits under any
Company Benefit Plan, or (E) otherwise make any change in any compensation arrangement or contract with any present or former employee,
officer, director, independent contractor, consultant, or stockholder or establish, terminate or materially amend any Company Benefit Plan or
materially increase benefits (including acceleration of benefits) under any Company Benefit Plan, or grant any awards under any Company
Benefit Plan, provided, however, that the foregoing clauses (A), (C), (D) and (E) shall not restrict the Company or any of its Subsidiaries from
entering into or making available to newly hired employees or promoted employees, in each case in the ordinary course of business, plans,
agreements, benefits and compensation arrangements that have a value that is consistent with the Company’s past practice of making
compensation and benefits available to newly hired or promoted employees in similar positions. The Company shall confer with Parent (i) prior
to implementing any reduction in force of Company employees and (ii) with respect to the implementation of a bonus program to incent key
employees to remain with the Company until after the Closing;
(e) sell, lease, license or otherwise dispose of or effect a Lien on any assets with a value in excess of $50,000 individually or $200,000 in
the aggregate, other than in the ordinary course of business;
(f) license, lease, acquire, sublease, grant any Lien (other than Permitted Liens) affecting and/or transfer any material interest in any
material asset other than leases entered into in the ordinary course of business, or enter into any amendment, extension or termination of any
leasehold interest in any property other than in the ordinary course of business;
(g) make any acquisitions of, capital contributions to, or investments in, by purchase of stock or other equity interests, or by merger,
consolidation or other business combination, of any business, corporation, partnership, limited liability company, association, joint venture or
other entity, or make any purchases of any material property or assets from any
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Person (other than a wholly-owned Subsidiary of the Company), other than purchases of current assets in the ordinary course of business;
(h) incur, assume, guarantee or prepay any indebtedness for borrowed money or offer, place or arrange any issue of debt securities or
commercial bank or other credit facilities, other than short-term borrowings by the Company in the ordinary course of business pursuant to the
Company’s existing credit facilities and consistent with past practice, or an incurrence of indebtedness that does not cause the principal
amount of outstanding indebtedness of the Company to exceed $1,000,000 at any time;
(i) make any material loans, advances or capital contributions to, or investments in, any other Person, other than contributions or
investments (i) to or in Subsidiaries, (ii) among Subsidiaries, (iii) constituting advances of expenses to employees in the ordinary course of
business, or (iv) pursuant to Contracts existing on the date of this Agreement;
(j) authorize or make any capital expenditure, other than (i) as specifically provided on Schedule 5.1 to the Company Disclosure Letter or
(ii) capital expenditures of approximately $100,000 following the date hereof;
(k) change its financial accounting principles, policies or procedures, other than as required by Law or GAAP, or write up, write down or
write off the book value of any assets of the Company and its Subsidiaries, other than in any such case (i) in the ordinary course of business,
or (ii) as may be required by Law or GAAP;
(l) waive, release, assign, settle or compromise any material Legal Action, other than as reflected or reserved against in the most recent
audited financial statements of the Company (or the notes thereto) included in the Company SEC Documents (for amounts not in excess of
such reserves);
(m) (i) settle or compromise any material Tax audit, make or change any material Tax election or file any material amendment to a material
Tax Return, (ii) except as required by applicable Law, change any annual Tax accounting period or adopt or change any material Tax
accounting method, or (iii) enter into any material closing agreement, surrender any right to claim a material refund of Taxes or consent to any
extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Company or its Subsidiaries;
(n) other than as permitted hereunder, satisfy, discharge, waive or settle any material right or obligation, other than in the ordinary course
of business;
(o) enter into, terminate or materially amend any Material Contract (it being agreed, for avoidance of doubt, that ordinary course licenses
by the Company of its commercial off-the-shelf computer software are not Material Contracts for purposes of this Agreement);
(p) (i) eliminate the positions of any employees, (ii) terminate the employment of employees except for terminations of individual
employees based on such employee’s failure to properly perform his or her duties and responsibilities, or (iii) terminate the employment of two
or more employees;
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(q) fail to use its diligent efforts to keep in force insurance policies or replacement or revised provisions providing insurance coverage
with respect to the assets, operations and activities of the Company and its Subsidiaries substantially as the same are currently in effect, and
in no event will such coverage not be commercially reasonable, taking into account the circumstances of the Company and its Subsidiaries; or
(r) agree or commit to do any of the foregoing.
Section 5.2 Access to Information; Confidentiality.
(a) Subject to applicable Law and that certain confidentiality agreement by and between the Company and Parent, dated as of
December 21, 2007 (the “Confidentiality Agreement”), and solely with respect to financing sources that are not a party to any Confidentiality
Agreement as of the date of this Agreement other confidentiality provisions reasonably acceptable to the Company, the Company will provide
and will cause its Subsidiaries and its and their respective Representatives to provide Parent and its Representatives and financing sources, at
Parent’s expense, during normal business hours and upon reasonable advance notice (i) such access to the officers, management employees,
offices, properties, books and records of the Company and such Subsidiaries (so long as such access does not unreasonably interfere with the
operations of the Company or the performance of their duties) as Parent reasonably may request, and (ii) subject to applicable Law and the
Company’s existing written policies with respect to the protection of employee privacy and protection of attorney-client privilege and attorney
work product, all documents that Parent reasonably may request.
(b) The Company makes no representation or warranty as to the accuracy of any information provided pursuant to Section 5.2(a), and
neither Merger Sub nor Parent may rely on the accuracy of any such information, in each case other than as expressly set forth in the
Company’s representations and warranties contained in Article III.
(c) All non-public or otherwise confidential information regarding the Company or any of its Subsidiaries obtained by Parent or its
Representatives shall be kept confidential by Parent and its Representatives in accordance with the Confidentiality Agreement.
Section 5.3 Limitations on Solicitation.
(a) Subject to Section 5.3(b) and Section 5.3(d):
(i) The Company shall not, shall cause its officers, directors and Subsidiaries not to, and shall not authorize its Representatives to
initiate, solicit or knowingly encourage or knowingly facilitate the submission of any Takeover Proposal, or engage in negotiations with
respect thereto.
(ii) The Company shall not, shall cause its officers, directors, and Subsidiaries not to, and shall not authorize its Representatives to
approve or recommend, or publicly propose to approve or recommend, a Takeover Proposal, or effect a Recommendation Change, or enter into
any merger agreement, letter of intent, agreement in principle, purchase agreement, option agreement or other similar agreement providing for a
Takeover Proposal.
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(b) Notwithstanding anything to the contrary contained in this Section 5.3, if prior to the Purchase Time, (i) the Company has received a
written Takeover Proposal from a third party that the Company Board determines in good faith (after consultation with its financial advisor and
outside legal counsel) to be bona fide, (ii) the Company has not intentionally or materially breached this Section 5.3, (iii) the Company Board
determines in good faith (after consultation with its financial advisor and outside legal counsel) that such Takeover Proposal constitutes or is
reasonably expected to lead to a Superior Proposal, and (iv) the Company Board determines in good faith (after consultation with its outside
legal counsel) that the failure to take the actions described in clauses (A) and (B) below could result in a violation of its fiduciary duties to the
stockholders of the Company under applicable Law, then the Company may (A) furnish information with respect to the Company and its
Subsidiaries to the Person making such Takeover Proposal, and (B) participate, engage or assist in any manner in discussions or negotiations
with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, the Company (x) will not, and will not
allow its Subsidiaries or authorize its or their Representatives to, disclose any non-public information to such Person without first entering into
a confidentiality agreement with such Person that contains confidentiality provisions that are not materially less restrictive in the aggregate to
such Person than those provisions contained in the Confidentiality Agreement are to Parent, and (y) will promptly provide to Parent any non-
public information concerning the Company or its Subsidiaries provided to such other Person which was not previously provided to Parent.
(c) Subject to the fiduciary duties of the Company Board, in the event the Company receives: (i) any Takeover Proposal or any bona fide
proposal or offer with respect to a Takeover Proposal; (ii) any request for non-public information relating to the Company or any of its
Subsidiaries concerning a Takeover Proposal; or (iii) any bona fide inquiry or request for discussions or negotiations regarding any Takeover
Proposal, the Company shall promptly, but in no event later than two (2) Business Days thereafter, notify Parent and disclose to Parent the
material terms of such Takeover Proposal, request or inquiry.
(d) Notwithstanding anything in Section 5.3(a)(ii) to the contrary, if at any time prior to the Purchase Time, (A) the Company Board
determines in good faith (after consultation with its financial advisor and outside legal counsel) that a Takeover Proposal received by the
Company constitutes a Superior Proposal, and (B) the Company Board determines in good faith (after consultation with its outside legal
counsel) that failing to take such action could result in a breach of the fiduciary duties of the Company Board under applicable Law, the
Company Board may (x) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Parent or
Merger Sub, the Company Board Recommendation, or recommend or endorse, or propose publicly to recommend or endorse, any Takeover
Proposal (a “Recommendation Change”), and/or (y) cause the Company to terminate this Agreement in order to enter into a definitive
agreement with respect to such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to the
foregoing clause (y) and any such purported termination shall be void ab initio, unless in advance of or concurrently with such termination
the Company pays the Company Termination Fee as required by Section 7.6(a)(ii) and simultaneously with such termination enters into an
acquisition agreement, merger agreement or similar definitive agreement (the “Alternative Acquisition Agreement”) and terminates this
Agreement in compliance with Section 7.4(c) and provided, further, that the Company Board may not make a Recommendation Change
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or terminate this Agreement pursuant to the foregoing clause (y) and any such purported termination shall be void ab initio unless the
Company shall have provided prior written notice to Parent, at least three (3) Business Days in advance (the “Notice Period”), of its intention
to take such action with respect to such Superior Proposal, which notice shall specify the material terms and conditions of such Superior
Proposal. During the Notice Period, the Company shall, and shall cause its Representatives to, negotiate with Parent and Merger Sub in good
faith (to the extent Parent and Merger Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement, and
the Company Board shall take into account any changes to the financial and other terms of this Agreement proposed by Parent and Merger
Sub (in the form of a binding, written and complete proposal, including all exhibits, ancillary agreements, schedules and necessary
amendments to the terms of this Agreement) in response to any such written notice by the Company or otherwise, so that the Takeover
Proposal ceases to constitute a Superior Proposal (it being understood and agreed that any amendment to the financial terms or other material
terms of such Superior Proposal shall require a new written notice by the Company and a new three (3) Business Day period).
(e) Subject to this Section 5.3 the Company shall not terminate, waive, amend or modify any material provision of any standstill or
confidentiality agreement to which it is a party that relates to a transaction of a type described in the definition of Takeover Proposal;
provided, however¸ that the Company may permit to be taken any of the actions prohibited under a standstill agreement if the Company Board
determines in good faith, after consultation with outside counsel, that failure to take such action would be inconsistent with its fiduciary
duties to the stockholders of the Company under applicable Law.
(f) Nothing contained in this Section 5.3 shall prohibit the Company Board from (i) complying with its disclosure obligations under
United States federal or state Law with regard to a Takeover Proposal, including taking and disclosing to the stockholders of the Company a
position with respect to any tender or exchange offer by a third party pursuant to Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange
Act (or any similar communication to stockholders) or (ii) making any required (based on the good faith determination of the Company Board)
“stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act.
(g) The Company shall not take any action to exempt any Person (other than Parent, Merger Sub and their respective Affiliates) from the
restrictions on “business combinations” contained in Section 203 of the DGCL (or any similar provisions of any other Law) or otherwise cause
such restrictions not to apply unless such actions are taken simultaneously with a termination of this Agreement.
Section 5.4 Notices of Certain Events.
(a) The Company will notify Parent and Merger Sub (and provide copies if applicable) of (i) any written or, to the Knowledge of the
Company, oral communication from (x) any Governmental Entity or (y) any third party alleging that the consent of such Person is or may be
required in connection with the transactions contemplated by this Agreement (and the response thereto from the Company, its Subsidiaries or
its Representatives), (ii) any communication from any Governmental Entity in connection with the transactions contemplated
45
by this Agreement (and the response thereto from the Company, its Subsidiaries or its Representatives), (iii) the commencement or threat, in
writing, of any Legal Action affecting the Company or any of its Subsidiaries or any of their respective properties or assets, or, to the
Knowledge of the Company, any employee, agent, director or officer, in his or her capacity as such, which if pending on the date hereof, would
have been required to have been disclosed by the Company pursuant to this Agreement or which relates to the transactions contemplated by
this Agreement (and the response thereto from the Company, its Subsidiaries or its Representatives), (iv) any event, change, occurrence,
circumstance or development between the date of this Agreement and the Effective Time of which causes, or would reasonably be expected to
cause, any condition to the obligations of the Company to effect the Merger and the other transactions contemplated by this Agreement not
to be satisfied, (v) any material failure of the Company to comply with or satisfy any covenant, condition or agreement to be complied with or
satisfied by it hereunder, and (vi) the occurrence of an event which would reasonably be expected to have a Company Material Adverse Effect
or that would otherwise reasonably be expected to cause a condition in Article VI not to be satisfied. With respect to any of the foregoing, the
Company will consult with Parent and Merger Sub and their Representatives so as to permit the Company and Parent and their respective
Representatives to cooperate to take appropriate measures to avoid or mitigate adverse consequences that may result from any of the
foregoing.
(b) Parent and Merger Sub will notify the Company of (i) any written or, to the Knowledge of Parent or Merger Sub, oral communication
from (x) any Governmental Entity or (y) any third party alleging that the consent of such Person (or another Person) is or may be required in
connection with the transactions contemplated by this Agreement (and the response thereto from Parent and Merger Sub or their
Representatives), (ii) any communication from any Governmental Entity in connection with the transactions contemplated by this Agreement
(and the response thereto from Parent and Merger Sub or their Representatives), (iii) the commencement or threat in writing of any Legal
Actions affecting Parent or any of its Affiliates that are related to the transactions contemplated by this Agreement (and the response thereto
from Parent and Merger Sub or their Representatives), (iv) any event, change, occurrence, circumstance or development between the date of
this Agreement and the Purchase Time and the Effective Time, as the case may be, of which Parent or Merger Sub learns and which causes, or
is reasonably expected to cause, any condition to the obligations of Parent or Merger Sub to effect the Offer or the Merger and the other
transactions contemplated by this Agreement not to be satisfied, (v) any material failure of Parent or Merger Sub to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it hereunder; and (vi) the occurrence of any event that would reasonably
be expected to cause a condition in Article VI or Annex A not to be satisfied. With respect to any of the foregoing, Parent and Merger Sub will
consult with the Company and its Representatives so as to permit the Company and Parent and Merger Sub and their respective
Representatives to cooperate to take appropriate measures to avoid or mitigate adverse consequences that may result from any of the
foregoing.
Section 5.5 Information Statement; Company Proxy Statement. The parties will take all necessary action such that the letter to stockholders
and information statement that may be provided to stockholders of the Company in connection with the Merger (including any amendments or
supplements) and any schedules required to be filed with the SEC in connection therewith (collectively, the “Information Statement”) or, if
required by applicable Law, the letter
46
to stockholders, notice of meeting, proxy statement and form of proxy that may be provided to stockholders of the Company in connection
with the Merger (including any amendments or supplements) and any schedules required to be filed with the SEC in connection therewith
(collectively, the “Company Proxy Statement”) will not, at the time the Information Statement or Company Proxy Statement, as applicable, is
first mailed and at the time of the Company Stockholders Meeting, if one is held, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are
made, not misleading. The parties will take all necessary action such that the Information Statement or Company Proxy Statement, as
applicable, will, at the time the such document is first mailed, at the time any amendment or supplement thereto is filed with the SEC, and at the
time of the Company Stockholders Meeting, if one is held, comply as to form in all material respects with the provisions of the Exchange Act
and the rules and regulations of the SEC promulgated thereunder.
(b) Unless the Merger is consummated in accordance with Section 253 of the DGCL as contemplated by Section 2.9, as soon as
practicable after the consummation of the Offer, the Company shall, subject to the prior review and approval of Parent and Merger Sub (which
approval shall not be unreasonably withheld) prepare and file with the SEC the Information Statement or, if required, the Company Proxy
Statement in preliminary form as required by the Exchange Act and the rules and regulations promulgated thereunder. The Company shall
obtain and furnish the information required to be included in the Information Statement or Company Proxy Statement, as applicable, shall
provide Parent and Merger Sub with, and consult with Parent and Merger Sub regarding, any comments that may be received from the SEC or
its staff with respect thereto, shall, subject to the prior review and approval of Parent and Merger Sub (which approval shall not be
unreasonably withheld), respond promptly to any such comments made by the SEC or its staff with respect to the Information Statement or
Company Proxy Statement, as applicable, and shall cause the Information Statement or Company Proxy Statement, as applicable, in definitive
form to be mailed to the Company’s stockholders at the earliest practicable date. If at any time prior to the Closing, any information relating to
the Offer, the Merger, the Company, Parent, Merger Sub or any of their respective Affiliates, directors or officers, should be discovered by the
Company or Parent which should be set forth in an amendment or supplement to the Information Statement or Company Proxy Statement, as
applicable, so that the Information Statement or Company Proxy Statement shall not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under
which they are made, not misleading, the party which discovers such information shall promptly notify the other party, and an appropriate
amendment or supplement describing such information shall be filed with the SEC and, if required, otherwise disseminated to the stockholders
of the Company.
(c) The Company and Parent each agrees, as to itself and its Subsidiaries, that none of the information supplied or to be supplied by it or
its Subsidiaries for inclusion or incorporation by reference in the Information Statement or the Company Proxy Statement and any amendment
or supplement thereto will, at the date of mailing to stockholders and at the time of the Company Stockholders Meeting, contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading, except that no
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covenant is made by the Company with respect to statements made or incorporated by reference therein based on information supplied by
Parent or any of its Subsidiaries in connection with the preparation of the Information Statement or the Company Proxy Statement for inclusion
or incorporation by reference therein. The Company agrees that the Information Statement and the Company Proxy Statement will comply as to
form in all material respects with the requirements of the Exchange Act.
Section 5.6 Employees; Benefit Plans.
(a) The Surviving Corporation and its Affiliates will honor all Company Benefit Plans (including any severance, retention, change of
control and similar plans, agreements, offer letters, offer summaries and other written arrangements, but excluding any commitment,
understanding or promise to grant equity compensation) in accordance with their terms as in effect immediately prior to the Effective Time,
subject to any amendment or termination thereof that may be expressly permitted by the terms of such Company Benefit Plans. During the
period from the Effective Date through the first (1st ) anniversary of the Effective Time (the “Continuation Period”), the Surviving Corporation
will provide all employees of the Company and its Subsidiaries as of the Effective Time who continue employment with the Surviving
Corporation (“Employees”) with benefits under employee benefit plans (within the meaning of Section 3(3) of ERISA) and other perquisites
and fringe benefits (collectively, “Employee Benefits”), other than equity based compensation, that are substantially similar in the aggregate,
on a group rather than an individual basis, than the Employee Benefits provided by the Company and its Subsidiaries as in effect at the
Effective Time; provided, however, that, subject to the requirements of the portion of this sentence that precedes this proviso, nothing herein
shall (i) require that the Surviving Corporation maintain or continue any particular Company Benefit Plan or (ii) interfere with the Surviving
Corporation’s right or obligation to make changes to any Company Benefit Plan or New Plan. Notwithstanding anything to the contrary set
forth herein, subject to Section 5.6(a), nothing herein shall preclude the Surviving Corporation from terminating the employment of any
Employee.
(b) For all purposes under the employee benefit plans of the Surviving Corporation and its Affiliates providing benefits to any
Employees after the Effective Time (the “New Plans”), the Surviving Corporation shall cause each Employee to receive credit for all service
with the Company and its Affiliates before the Effective Time (including predecessor or acquired entities or any other entities with respect to
which the Company and its Affiliates have given credit for prior service) to the extent recognized in any similar Company Benefit Plans in
which such Employee participated immediately prior to the Closing (such service, “Pre-Closing Service”) for all purposes, other than benefit
accruals unless such accrual credit is required by law, including determining eligibility to participate, level of benefits and vesting except to the
extent such credit would result in a duplication of accrual of benefits for the same period of service. In addition, and without limiting the
generality of the foregoing, (A) each Employee immediately will be eligible to participate, without any waiting time, in any New Plan to the
extent coverage under such New Plan replaces coverage under a similar or comparable Company Benefit Plan in which such Employee
participated immediately before the Effective Time (such plans, collectively, the “Old Plans”), and (B) for purposes of each New Plan providing
medical, dental, pharmaceutical, vision and/or disability benefits to any Employee, the Surviving Corporation will use its commercially
reasonable efforts to cause all pre-existing condition
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exclusions and actively-at-work requirements of such New Plan to be waived for such Employee and his or her covered dependents, to the
extent any such exclusions or requirements were waived or were inapplicable under any similar or comparable Company Benefit Plan, and the
Surviving Corporation will cause any eligible expenses incurred by such Employee and his or her covered dependents during the portion of
the plan year of the Old Plan ending on the date such Employee’s participation in the corresponding New Plan begins to be taken into account
under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such
Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan.
(c) If requested by Parent no later than ten days prior to the Closing, the Company shall take (or cause to be taken) all actions necessary
or appropriate to terminate, effective no later than the day prior to the date on which the Merger becomes effective, any Company Benefit Plan
that contains a cash or deferred arrangement intended to qualify under Section 401(k) of the Code (a “Company 401(k) Plan”). If the Company
is required to terminate any Company 401(k) Plan, then the Company shall, at the request of Parent, provide to Parent prior to the Closing Date
written evidence of the adoption by the Company Board of Directors of resolutions authorizing the termination of such Company 401(k) Plan
(the form and substance of which resolutions shall be subject to the prior review of Parent). The Company also shall take such other actions in
furtherance of terminating such Company 401(k) Plan as Parent may reasonably request. Any actions taken under this Section 5.6(c) shall be
made contingent upon the consummation and Closing of the Transaction.
(d) The provisions of this Section 5.6 are solely for the benefit of the parties to this Agreement, and no current or former employee,
director, independent contractor or consultant of the Company or its Subsidiaries or any other Person associated therewith shall be regarded
as a third party beneficiary of this Section 5.6. No provision of this Agreement shall be construed as amending any Company Benefit Plan and
any provisions hereof regarding Company Benefit Plans shall not become effective unless and until the Company Board or any other entity
overseeing such Company Benefit Plans takes such action as they deem necessary and appropriate to implement such provisions. Neither the
Company Board’s nor any other entities’ approval of this Agreement, nor the execution of this Agreement by an officer or director of the
Company, shall constitute the required action to amend any such Company Benefit Plan.
Section 5.7 Directors’ and Officers’ Indemnification and Insurance.
(a) In the event of any threatened or actual Legal Action, whether civil, criminal or administrative, including any such Legal Action or
investigation in which any present or former director or officer of the Company or any of its Subsidiaries (together, the “Indemnified Parties”)
is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining in whole or in part to, any
action or failure to take action by any such Person in such capacity taken prior to the Effective Time (including with respect to any action or
failure to take action occurring in connection with the approval of this Agreement and the consummation of the Merger or any of the other
transactions contemplated hereby), Parent and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally, from and
after the Effective Time, indemnify, defend and hold harmless, as and to the fullest extent permitted or required by applicable Law and required
by the Company
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Organizational Documents (or any similar organizational document of the Company or any of its Subsidiaries), and when applicable any
indemnity agreements applicable to any such Indemnified Party or any Contract between an Indemnified Party and the Company or one of its
Subsidiaries, in each case, in effect on the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable legal and
other expenses (including reimbursement for reasonable legal and other fees and expenses incurred in advance of the final disposition of any
Legal Action or investigation to each Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified Party
in connection with such Legal Action or investigation. To the extent permitted by applicable Law and the Company Organizational
Documents, Parent shall, or shall cause the Surviving Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party
in connection with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees and disbursements) are
incurred upon receipt from such Indemnified Party of a request therefor; provided, however, (if and to the extent required by the DGCL or other
applicable Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such amount if it is ultimately
determined that such Indemnified Party is not entitled to be indemnified under the DGCL or other applicable Law or the Company
Organizational Documents with respect to such Legal Action or investigation. In the event any Legal Action or investigation is brought
against any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially reasonable efforts to assist in the
vigorous defense of such matter; provided, however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or consent
to the entry of any judgment in any Legal Action or investigation (and in which indemnification could be sought by such Indemnified Party
hereunder) without the prior written consent of such Indemnified Party if and to the extent such settlement, compromise or judgment involves
non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be liable for any settlement, compromise or consent to the
entry of any judgment in any Legal Action or investigation effected without its prior written consent.
(b) For a period of six (6) years after the Effective Time, the Surviving Corporation shall maintain in effect the Company’s current
directors’ and officers’ liability insurance and fiduciary liability insurance (the “D&O Insurance”) in respect of acts or omissions occurring at
or prior to the Effective Time, covering each Person currently covered by the D&O Insurance (a complete and accurate copy of which has
been heretofore made available to Parent), on terms with respect to the coverage, deductible and amounts no less favorable in the aggregate
than those of the D&O Insurance in effect on the date of this Agreement; provided, however, that (x) in satisfying its obligations under this
Section 5.7(b) the Surviving Corporation shall not be obligated to pay annual premiums in excess of 200% of the amount currently paid by the
Company (which premiums are set forth in Section 5.7(b) of the Company Disclosure Letter), it being understood and agreed that the Surviving
Corporation shall nevertheless be obligated to provide the maximum amount of such coverage as may be obtained for such annual 200%
amount, and (y) in the event of the application of clause (x), any Indemnified Party, upon reasonable written notice thereof (which notice shall
be provided no later than thirty (30) days prior to the Effective Time and shall set forth in reasonable detail for each Person to be covered the
policy coverage, premiums, deductibles, limitations and other pertinent information), who desires to obtain additional coverage such that,
when combined with the coverage obtained by the Surviving Corporation in accordance with clause (x), it provides insurance coverage
equivalent to the D&O Insurance in effect on the date hereof, may so elect and, if available the
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Surviving Corporation shall acquire such additional coverage on behalf of such Person; provided, however, that in the event any Indemnified
Party makes such an election, such Indemnified Party shall pay the portion of the premium of such D&O Insurance in excess of the amount
which the Surviving Corporation is obligated to pay pursuant to this Section 5.7. The Company shall purchase, in consultation with Parent and
subject to Parent’s prior approval, which approval shall not be unreasonably withheld or delayed, as soon as practicable after the date of this
Agreement, a six (6)-year pre-paid “tail policy” on terms and conditions (in both amount and scope) providing substantially equivalent
benefits as the current D&O Insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the
Effective Time, covering without limitation the transactions contemplated hereby. Any pre-paid tail policy purchased pursuant to this
Section 5.7(b) shall be subject to a cap of $725,000 on the amount to be expended to purchase such policy. In either case, any such policy,
when fully paid for, shall be in lieu of satisfying the Surviving Corporation’s obligations pursuant to the first sentence of this Section 5.7(b).
The obligation to maintain insurance provided in this Section 5.7(b) shall continue in full force and effect for a period of not less than six
(6) years from and after the Effective Time; provided, however, that in the event any claim or claims are asserted or made within such six (6)-
year period, the Surviving Corporation shall ensure that such insurance remains in full force and effect with respect to such claims until final
disposition thereof.
(c) Following the Effective Time, the Surviving Corporation and each of its Subsidiaries shall include and maintain in effect in their
respective certificates of incorporation or bylaws (or similar organizational documents) for a period of six (6) years after the Effective Time,
provisions regarding the elimination of liability of directors (or their equivalent), indemnification of officers and directors thereof and
advancement of expenses which are, with respect to each such entity, no less advantageous to the Indemnified Parties than the corresponding
provisions contained in such organizational documents as of the date of this Agreement.
(d) If the Surviving Corporation or any of its successors or assigns shall (i) consolidate with or merge into any other Person and shall not
be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfer all or substantially all of its properties and
assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns of the Surviving
Corporation (or acquirer of such assets) shall assume all of the obligations of the Surviving Corporation set forth in this Section 5.7.
(e) The provisions of this Section 5.7 will survive the Closing and are intended to be for the benefit of, and will be enforceable by, each
Indemnified Party and its successors and representatives after the Effective Time and their rights under this Section 5.7 are in addition to, and
will not be deemed to be exclusive of, any other rights to which an Indemnified Party is entitled, whether pursuant to Law, Contract, the
Company Organizational Documents (or similar organizational documents of the Surviving Corporation or any of its Subsidiaries) or otherwise.
Section 5.8 Reasonable Efforts.
(a) Upon the terms and subject to the conditions set forth in this Agreement and in accordance with applicable Laws, each of the parties
to this Agreement will use its
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reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to
ensure that the conditions set forth in Article VI and Annex A are satisfied and to consummate the transactions contemplated by this
Agreement as promptly as practicable, including (i) obtaining all necessary actions or non-actions, waivers, consents and approvals from any
Governmental Entity, (ii) if applicable, making, as promptly as practicable, an appropriate filing with the United States Federal Trade
Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “Antitrust Division”) of a Notification and
Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby, as applicable, which filings shall specifically
request early termination of the waiting period prescribed by the HSR Act, and submitting as promptly as practicable any supplemental
information requested in connection therewith pursuant to the HSR Act, (iii) making, as promptly as practicable, appropriate filings under any
Foreign Merger Control Law, if required, (iv) obtaining all consents, approvals or waivers from, or taking other actions with respect to, third
parties necessary or advisable to be obtained or taken in connection with the transactions contemplated by this Agreement (provided,
however, in no event shall obtaining such consents, approvals or waivers be required as a condition to consummating the Offer or Closing
hereunder), (v) subject to first having used its commercially reasonable efforts to negotiate a reasonable resolution of any objections
underlying such lawsuits or other legal proceedings, defending and contesting any lawsuits or other legal proceedings, whether judicial or
administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement, including seeking to
have any stay or temporary restraining order entered by any Governmental Entity vacated or reversed, and (vi) executing and delivering any
additional instruments necessary to consummate the transactions contemplated hereby, and to fully carry out the purposes of this Agreement.
(b) Parent and Merger Sub and the Company will cooperate and consult with each other in connection with the making of all such filings,
notifications and any other material actions pursuant to this Section 5.8, subject to applicable Law, by permitting counsel for the other party to
review in advance, and consider in good faith the views of the other party in connection with, any proposed material written communication to
any Governmental Entity and by providing counsel for the other party with copies of all filings and submissions made by such party and all
correspondence between such party (and its advisors) with any Governmental Entity and any other information supplied by such party and
such party’s Affiliates to or received from any Governmental Entity in connection with the transactions contemplated by this Agreement;
provided, however, that material may be redacted (x) as necessary to comply with contractual arrangements, (y) as necessary to address good
faith legal privilege or confidentiality concerns and (z) as necessary to comply with applicable Law. Neither Parent and Merger Sub nor the
Company shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation
of the transactions contemplated by this Agreement at the behest of any Governmental Entity without the consent of the other party (which
consent shall not be unreasonably withheld, delayed or conditioned).
(c) Each of Parent and Merger Sub and the Company will promptly inform the other party upon receipt of any material communication
from the FTC, the Antitrust Division, or any Governmental Entity regarding any of the transactions contemplated by this Agreement. If Parent
and Merger Sub or the Company (or any of their respective Affiliates) receives a request for additional information or documentary material
from any such Person that is related to the
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transactions contemplated by this Agreement, then such party will endeavor in good faith to make, or cause to be made, as soon as
reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. The parties agree
not to participate, or to permit their Affiliates to participate, in any substantive meeting or discussion with the FTC, the Antitrust Division, or
any Governmental Entity in connection with the transactions contemplated by this Agreement unless, except where prohibited by Law, it so
consults with the other party in advance and, to the extent not prohibited by the FTC, the Antitrust Division, or such Governmental Entity,
gives the other party the opportunity to attend and participate. Each party will advise the other party promptly of any understandings,
undertakings or agreements (oral or written) which the first party proposes to make or enter into with the FTC, the Antitrust Division, or any
Governmental Entity in connection with the transactions contemplated by this Agreement. In furtherance and not in limitation of the
foregoing, each party will use its commercially reasonable efforts (i) to resolve any objections that may be asserted with respect to the
transactions contemplated by this Agreement under any antitrust, competition, premerger notification, trade regulation or merger control Law,
including (subject to first having used commercially reasonable efforts to negotiate a resolution to any such objections) contesting and
resisting any action or proceeding, and (ii) to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other Order,
whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other
transactions contemplated by this Agreement and to have such statute, rule, regulation, decree, judgment, injunction or other Order repealed,
rescinded or made inapplicable so as to permit consummation of the transactions contemplated by this Agreement.
Section 5.9 Public Announcements. The initial press release concerning this Agreement or the transactions contemplated hereby shall be a
joint press release and, thereafter, so long as the Agreement remains in effect, the parties agree that no public release or announcement
concerning the transactions contemplated by this Agreement shall be issued by either party without the prior consent of the other party
(which consent shall not be unreasonably withheld, conditioned or delayed), except as such release or announcement shall be required by Law
or the rules or regulations of any securities exchange in which case the party required to make the release or announcement shall use its
commercially reasonable efforts to allow the other party reasonable time to comment on such release or announcement in advance of such
issuance; provided, however, that each of Parent and the Company may make any public statement in response to specific questions by the
press, analysts, investors or those attending industry conferences or financial analyst conference calls, so long as any such statements are
not inconsistent with previous public releases or announcements made by Parent or the Company in compliance with this Section 5.9 and do
not reveal non-public information regarding the other party; provided, further, however, that the Company may issue any public release or
announcement, without prior consultation with Parent, contemplated by, or with respect to any Recommendation Change or any other action
taken in connection with Section 5.3.
Section 5.10 Fees and Expenses. All expenses (including those payable to Representatives) incurred by any party to this Agreement or on
its behalf in connection with this Agreement and the transactions contemplated by this Agreement will be paid by the party incurring those
expenses, except as otherwise provided in Section 5.7, Section 5.13 and Section 7.6; provided, however, that Parent shall pay any filing fee
under the HSR Act, if applicable.
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Section 5.11 Takeover Statutes. If any takeover statute is or becomes applicable to this Agreement, the Offer, the Merger or the other
transactions contemplated by this Agreement, each of Parent, Merger Sub and the Company and their respective boards of directors will
(a) take all necessary action to ensure that such transactions may be consummated as promptly as practicable upon the terms and subject to
the conditions set forth in this Agreement, and (b) otherwise act to eliminate or minimize the effects of such takeover statute.
Section 5.12 Resignations. The Company shall use its reasonable best efforts to obtain and deliver to Parent at the Closing evidence
reasonably satisfactory to Parent of the resignation effective, as of the Effective Time, of those directors and officers of the Company or any
Subsidiary of the Company designated by Parent to the Company in writing prior to the Closing.
Section 5.13 Conduct of Business of Parent and Merger Sub Pending the Merger. Each of Parent and Merger Sub agrees that, between the
date of this Agreement and the Effective Time, it shall not, directly or indirectly, knowingly take or permit any action (a) to cause its
representations and warranties set forth in Article IV to be untrue in any material respect; or (b) that would, or would reasonably be expected
to, individually or in the aggregate, prevent, materially delay or materially impede the ability of Parent and Merger Sub to consummate the Offer
or the Merger or the other transactions contemplated by this Agreement.
Section 5.14 Control of Operations. Without in any way limiting any party’s rights or obligations otherwise set forth under this Agreement,
the parties understand and agree that (i) nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or
direct the Company’s operations prior to the Effective Time and (ii) prior to the Effective Time, the Company shall exercise, consistent with the
terms and conditions of this Agreement, complete control and supervision over its operations.
Section 5.15 Tender Agreement. Contemporaneously with the execution of this Agreement, the Company shall cause the Tender Agreement
to be delivered to Parent from each of the Company’s executive officers and directors, and their Affiliates, identified on Exhibit C.
Section 5.16 Transfer Taxes. The Company and Parent shall cooperate in the preparation, execution and filing of all returns, questionnaires,
applications or other documents regarding any sales, transfer, stamp, stock transfer, value added, use, real property transfer or gains and any
similar Taxes which become payable in connection with the transactions contemplated by this Agreement. Notwithstanding anything to the
contrary herein, each of Parent and the Surviving Corporation agrees to assume liability for and pay any sales, transfer, stamp, stock transfer,
value added, use, real property transfer or gains and any similar Taxes, as well as any transfer, recording, registration and other fees that may
be imposed upon, payable or incurred in connection with this Agreement and the transactions contemplated hereby.
ARTICLE VI
CONDITIONS TO THE MERGER
Section 6.1 Conditions to the Obligations of Each Party. The respective obligation of each party to this Agreement to effect the Merger is
subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditions:
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(a) Stockholder Approval. Unless the Merger is consummated pursuant to Section 253 of the DGCL, as contemplated by Section 2.9 of
this Agreement, the Requisite Stockholder Vote shall have been obtained.
(b) Regulatory Approvals. (a) If applicable, the waiting period applicable to the consummation of the Merger under the HSR Act (or any
extension thereof) shall have expired or early termination thereof shall have been granted and (b) if any Foreign Merger Control Law is
applicable to the transactions contemplated hereby, then the applicable Governmental Entity shall have given all necessary approvals or
consents, except for those approvals or consents the failure of which to obtain would not be material to the Company and its Subsidiaries,
taken as a whole.
(c) No Injunctions or Restraints. No Governmental Entity shall have enacted, issued, promulgated, enforced or entered any Law or Order
(whether temporary, preliminary or permanent) which is then in effect that have the effect of making the Merger illegal or otherwise preventing
or prohibiting the consummation of the Merger. No Governmental Entity shall have commenced and not withdrawn any proceeding seeking to
enjoin or otherwise prohibit consummation of the Merger.
(d) Consummation of Offer. Merger Sub shall have accepted for purchase and paid for the Shares tendered (and not withdrawn) pursuant
to the Offer.
Section 6.2. It shall be a condition to the Parent’s obligation to effect the Merger that the Company shall have filed with the SEC its Annual
Report on Form 10-K for the fiscal year ended December 31, 2008.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
Section 7.1 Termination by Mutual Consent. This Agreement may be terminated and the Offer and the Merger may be abandoned at any
time prior to the Effective Time, by mutual written consent of Parent and the Company.
Section 7.2 Termination by Either Parent or the Company. This Agreement may be terminated by either Parent or the Company by written
notice at any time prior to the Effective Time:
(a) whether prior to or after the satisfaction of the condition set forth in Section 6.1(a), if the Purchase Time is not on or before July 31,
2009 (the “Outside Date”); provided, however, that Parent shall not be entitled to terminate the Agreement on the Outside Date if Merger Sub
is otherwise required to accept for payment and pay for shares validly tendered and not withdrawn on the Outside Date in accordance with
Section 1A.1(iii); or
(b) if any Law or Governmental Entity prohibits consummation of the Merger or if any Order restrains, enjoins or otherwise prohibits
consummation of the Merger, and such Order has become final and nonappealable; provided, however that the party seeking to terminate
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this Agreement pursuant to this Section 7.2(b) shall have used all reasonable best efforts to prevent the entry of and to remove or avoid such
prohibition or Order to the extent within its control or influence;
provided, however, that in each case the right to terminate this Agreement under this Section 7.2 will not be available to any party to this
Agreement whose failure to fulfill any of its obligations under this Agreement has been a principal cause of, or resulted in, the failure of a
condition to the Merger.
Section 7.3 Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent by written notice at any
time prior to the Purchase Time:
(a) (i) due to a failure of any of the Offer Conditions to be satisfied at the scheduled expiration of the Offer (as the same may have been
extended pursuant to the terms of this Agreement), the Offer shall have expired or been terminated and Merger Sub shall not have accepted for
payment and paid for Shares pursuant to the Offer in accordance with the terms thereof; provided, that Parent shall not have the right to
terminate this Agreement pursuant to this Section 7.3(a)(i) if any of the events or circumstances referred to in this Section 7.3(a)(i) directly or
indirectly resulted from or was caused by Parent’s failure to comply in any material respect with any of its obligations, covenants or
agreements under this Agreement or by the failure of any representation or warranty of the Parent or Merger Sub contained in this Agreement
to be true and correct; or
(ii) if, (i) the Company Board shall have made a Recommendation Change, (ii) the Company Board approves, endorses or recommends
any Takeover Proposal other than the Merger or has entered into any letter of intent or similar document or any contract accepting any
Takeover Proposal, or (iii) the Company has intentionally and knowingly materially breached any of its obligations under Section 5.3;
(b) if a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement shall have
occurred which would give rise to the failure of the Offer Condition set forth in either Paragraph 1(e) or Paragraph 1(f) of Annex A to this
Agreement to be satisfied, and such breach is incapable of being cured by the Outside Date; provided, however, that neither Parent nor
Merger Sub shall be entitled to terminate this Agreement at such time if (A) any material covenant of Parent or Merger Sub contained in this
Agreement shall have been breached in any material respect, and such breach shall not have been cured; or (B) there exists a material breach
of or inaccuracy in any representation or warranty of Parent or Merger Sub contained in this Agreement which has not then been cured.
Section 7.4 Termination by the Company. This Agreement may be terminated by the Company by written notice if, at any time prior to the
Purchase Time:
(a) if (i) due to a failure of any of the Offer Conditions to be satisfied at the scheduled expiration of the Offer (as the same may have been
extended pursuant to the terms of this Agreement), the Offer shall have expired or been terminated and Merger Sub shall not have accepted for
payment and paid for Shares pursuant to the Offer in accordance with the terms thereof or (ii) Merger Sub fails to purchase validly tendered
Shares if required to do so pursuant
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to and in accordance with the terms of the Offer, in violation of the terms of this Agreement; provided, that the Company shall not have the
right to terminate this Agreement pursuant to clauses (i) or (ii) of this Section 7.4(a) if any of the events or circumstances referred to in such
clauses (i) or (ii) of this Section 7.4(a) directly or indirectly resulted from material breach by the Company of this Agreement such that the
conditions set forth in either Paragraph 1(e) or Paragraph 1(f) of Annex A to this Agreement would not be satisfied;
(b) a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement shall
have occurred which would prevent Parent or Merger Sub from consummating the transactions contemplated by this Agreement, and such
breach is incapable of being cured by the Outside Date; provided, however, that the Company is not then in material breach of this Agreement
such that the conditions set forth in either Paragraph 1(e) or Paragraph 1(f) of Annex A to this Agreement would not be satisfied; or
(c) pursuant to and in accordance with Section 5.3(d).
Section 7.5 Effect of Termination. If this Agreement is terminated pursuant to this Article VII, it will become void and of no further force and
effect, with no liability on the part of any party to this Agreement (or any of their respective former, current, or future general or limited
partners, stockholders, managers, members, directors, officers, Affiliates or agents), except that the provisions of Section 5.2(c), Section 5.10,
the indemnity and reimbursement provisions of Section 5.12(a), this Section 7.5, Section 7.6 and Article VIII will survive any termination of this
Agreement; provided, however, that except as otherwise provided in Section 7.6, nothing herein shall relieve any Party from liabilities as a
result of any intentional breach of any of its representations, warranties, covenants or other agreements set forth in this Agreement prior to
such termination. It shall be deemed to be an intentional breach of this Agreement by Merger Sub if the Company has the right to terminate
this Agreement pursuant to Section 7.4(a)(ii).
Section 7.6 Payment of Fees Following Termination.
(a) The Company will pay, or cause to be paid, to an account or accounts designated by Parent, by wire transfer of immediately available
funds, an amount equal to the Company Termination Fee:
(i) if this Agreement is terminated by Parent pursuant to Section 7.3(a)(ii), in which event payment will be made within two
(2) Business Days after such termination;
(ii) if this Agreement is terminated by the Company pursuant to Section 7.4(c), in which event payment must be made in advance of or
concurrent with such termination; or
(iii) if (A) a bona fide Takeover Proposal shall have been made known publicly and not withdrawn prior to the termination of this
Agreement and (B) this Agreement is terminated by Parent or the Company pursuant to Section 7.2(a) or Section 7.2(b), or by Parent pursuant
to Section 7.3(b), and within twelve (12) months following the date of such termination,
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the Company or any of its Subsidiaries enters into a definitive agreement providing for the implementation of such Takeover Proposal or the
Company thereafter consummates such Takeover Proposal, in which event payment will be made on or prior to the date on which the
Company enters into such definitive agreement.
For purposes of this Section 7.6 only, references in the definition of the term “Takeover Proposal” to the figure “20%” will be deemed to be
replaced by “more than 50%.”
(b) In no event shall the Company be required to pay the Company Termination Fee on more than one occasion.
(c) The Company acknowledges that the agreements contained in this Section 7.6 are an integral part of the transactions contemplated
by this Agreement, that without these agreements Parent and Merger Sub would not have entered into this Agreement, and that the damages
resulting from termination of this Agreement under circumstances where a Company Termination Fee is payable are uncertain and incapable of
accurate calculation and that the amounts payable pursuant to this Section 7.6 are reasonable forecasts of the actual damages which may be
incurred and constitute liquidated damages and not a penalty.
(d) If the Company fails to pay as directed in writing by Parent any amounts due to accounts designated by Parent pursuant to this
Section 7.6 within the time periods specified in this Section 7.6, the Company shall pay the costs and expenses (including reasonable legal fees
and expenses) incurred by Parent and/or Merger Sub in connection with any action, including the filing of any lawsuit, taken to collect
payment of such amounts, together with interest on such unpaid amounts at the prime lending rate prevailing during such period as published
in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.
(e) Each of Parent and Merger Sub hereby agrees, that upon any termination of this Agreement under circumstances where it is entitled
to a termination fee pursuant to this Section 7.6 and provided such termination fee is paid in full, Parent, Merger Sub and their Affiliates shall
be precluded from any other remedy against the Company or its Affiliates or Representatives, at Law or in equity or otherwise, and neither
Parent, Merger Sub nor any of their Affiliates may seek (and Parent shall cause such Persons not to seek) to obtain any recovery, judgment, or
damages of any kind, including consequential, indirect, or punitive damages, against the Company or its Representatives, Affiliates, directors,
officers, employees, partners, managers, members, or stockholders in connection with this Agreement or the transactions contemplated
hereby.
Section 7.7 Amendment. This Agreement may be amended by the parties to this Agreement at any time prior to the Effective Time, whether
before or after stockholder approval hereof; provided, however, that (a) no amendment that requires further stockholder approval under
applicable Laws after stockholder approval hereof will be made without such required further approval and (b) such amendment has been duly
authorized or approved by each of Parent and the Company. This Agreement may not be amended except by an instrument in writing signed
by each of the parties to this Agreement.
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Section 7.8 Extension; Waiver. At any time prior to the Effective Time, Parent (for itself and Merger Sub), on the one hand, and the
Company, on the other hand, may (a) extend the time for the performance of any of the obligations of the other party, (b) waive any
inaccuracies in the representations and warranties of the other party contained in this Agreement or in any document delivered under this
Agreement, or (c) unless prohibited by applicable Laws, waive compliance with any of the covenants or conditions contained in this
Agreement. Any agreement on the part of a party to any extension or waiver will be valid only if set forth in an instrument in writing signed by
such party. The failure of any party to assert any of its rights under this Agreement or otherwise will not constitute a waiver of such rights.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Survival. None of the representations, warranties and covenants to be performed prior to the Purchase Time contained in this
Agreement or in any instrument delivered under this Agreement will survive the Purchase Time; provided, however, that this Section 8.1 does
not limit any covenant of the parties to this Agreement, which, by its terms, contemplates performance after the Purchase Time. Without
limiting the preceding sentence, the covenants and agreements of the parties contained in Section 7.5 (and the Sections referred to therein)
and Section 7.6 and Article VIII of this Agreement shall survive termination of this Agreement in accordance with their terms. The
Confidentiality Agreement will (a) survive termination of this Agreement in accordance with its terms and (b) the Confidentiality Agreement
shall terminate as of the Effective Time.
Section 8.2 Governing Law. This Agreement will be governed by, and construed in accordance with, the Laws of the State of Delaware,
without giving effect to any applicable principles of conflict of laws that would cause the Laws of another State to otherwise govern this
Agreement.
Section 8.3 Submission to Jurisdiction. Each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this
Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement
and the rights and obligations arising hereunder brought by the other party hereto or its successors or assigns shall be brought and
determined exclusively in any state or federal court in the State of Delaware. Each of the parties hereto hereby irrevocably submits with regard
to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the
aforesaid courts and agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this
Agreement in any court or tribunal other than the aforesaid courts. Each of the parties hereto hereby irrevocably waives, and agrees not to
assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement and the rights
and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and
obligations arising hereunder (a) any claim that it is not personally subject to the jurisdiction of the above named courts for any reason other
than the failure to serve process in accordance with this Section 8.3, (b) any claim that it or its property is exempt or immune from jurisdiction
of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment,
attachment in aid
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of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by the applicable Law, any claim that
(A) the suit, action or proceeding in such court is brought in an inconvenient forum, (B) the venue of such suit, action or proceeding is
improper, or (C) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
Section 8.4 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL
ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING
WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH
PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.4.
Section 8.5 Notices. Any notice, request, instruction or other communication under this Agreement will be in writing and delivered by hand
or overnight courier service or by facsimile:
If to Parent or Merger Sub, to: If to the Company, to:
AMICAS, Inc. Emageon Inc.

20 Guest Street, Suite 400 1200 Corporate Drive
Boston, MA 02135 Suite 200
Facsimile No.: (617) 779-7879 Birmingham, Alabama 35242
Attn: President and Chief Executive Facsimile No.: (205) 980-9815
Officer and Chief Financial Attn: Chief Financial Officer
Officer
With a copy to (which will not constitute With a copy to (which will not
notice to Parent or Merger Sub): constitute notice to the
Company):
Mintz, Levin, Cohn, Ferris, Glovsky and Bass, Berry & Sims PLC
Popeo, P.C. 315 Deaderick Street, Suite 2700
One Financial Center Nashville, TN 37238
Boston, MA 02111 Facsimile No.: (615) 742-2709
Facsimile No.: (617) 542-2241 Attn: Howard H. Lamar III
Attn: John R. Pomerance Andrew L. McQueen
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and
Sirote & Permutt, PC

2311 Highland Avenue South
Birmingham, AL 35205
Facsimile No.: (205) 212-3887
Attn: W. Todd Carlisle
or to such other Persons, addresses or facsimile numbers as may be designated in writing by the Person entitled to receive such
communication as provided above. Each such communication will be effective (a) if delivered by hand or overnight courier, when such
delivery is made at the address specified in this Section 8.5, or (b) if delivered by facsimile, when such facsimile is transmitted to the facsimile
number specified in this Section 8.5 and appropriate confirmation is received.
Section 8.6 Entire Agreement. This Agreement (including the Exhibits to this Agreement), the Company Disclosure Letter, the Acquiror
Disclosure Letter, the Tender Agreements and the Confidentiality Agreement constitute the entire agreement and supersede all other prior
agreements, understandings, representations and warranties, both written and oral, among the parties to this Agreement with respect to the
subject matter of this Agreement. No representation, warranty, inducement, promise, understanding or condition not set forth in this
Agreement has been made or relied upon by any of the parties to this Agreement.
Section 8.7 No Third Party Beneficiaries. This Agreement is not intended to confer upon any person, other than the parties hereto and their
successors and permitted assigns, any rights or remedies hereunder, except that the parties hereto agree and acknowledge that the agreements
and covenants contained in Section 5.7 are intended for the direct and irrevocable benefit of the Indemnified Parties described therein and their
respective heirs and legal representatives (each such Indemnified Party, a “Third Party Beneficiary”), and that each such Third Party
Beneficiary, although not a party to this Agreement, shall be and is a direct and irrevocable third party beneficiary of such agreements and
covenants and shall have the right to enforce such agreements and covenants against the Surviving Corporation in all respects fully and to
the same extent as if such Third Party Beneficiary were a party hereto. Notwithstanding the foregoing or anything to the contrary in this
Agreement, Parent acknowledges and agrees that in the event of any breach, or wrongful repudiation or termination, of this Agreement by
Parent and/or Merger Sub, the actual or potential damages incurred by the Company for purposes of determining any remedy at Law or equity
under this Agreement would include the actual and/or potential damages incurred by the Company’s stockholders in the event such Persons
do not receive the benefit of the bargain negotiated by the Company on their behalf, subject to the Requisite Stockholder Approval (if
applicable), as set forth in this Agreement; provided, however, that it is agreed that neither this provision nor any other provision in this
Agreement is intended to provide the Company’s stockholders (or any party acting on their behalf) the ability to directly seek (prior to the
Closing Date) the enforcement of, or directly seek any remedies pursuant to, this Agreement, or otherwise create any rights in the Company’s
stockholders under this Agreement or otherwise, including against the Company or its directors, under any theory of Law or equity, including
under the applicable Laws of agency or the Laws relating to the rights
61
and obligations of third party beneficiaries. For avoidance of doubt as to the parties’ intent, the determination of whether and how to
terminate, amend, make any waiver or consent under or enforce this Agreement, and whether and how (if applicable) to distribute any damages
award to its stockholders, shall exclusively belong to the Company in its sole discretion.
Section 8.8 Severability. The provisions of this Agreement are severable and the invalidity or unenforceability of any provision will not
affect the validity or enforceability of the other provisions of this Agreement. If any provision of this Agreement, or the application of that
provision to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision will be substituted for that
provision in order to carry out, so far as may be valid and enforceable, the intent and purpose of the invalid or unenforceable provision and
(b) the remainder of this Agreement and the application of that provision to other Persons or circumstances will not be affected by such
invalidity or unenforceability, nor will such invalidity or unenforceability affect the validity or enforceability of that provision, or the
application of that provision, in any other jurisdiction.
Section 8.9 Assignment. This Agreement may not be assigned by any party without the prior written consent of the other party whether by
operation of Law or otherwise. Any purported assignment not permitted under this Section 8.9 will be null and void ab initio. This Agreement
will be binding upon, inure to the benefit of, and be enforceable by, the parties and their successors and assigns.
Section 8.10 Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this
Agreement, including each party’s failure to take all actions pursuant hereto as are necessary on its part to consummate the Offer and the
Merger, were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that, regardless of the
availability of an adequate and available damages remedy, the parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this Agreement, including the requirements that each party take all
actions pursuant hereto as are necessary on its part to consummate the Offer and the Merger, in the Delaware Court of Chancery, this being in
addition to any other remedy to which they may be entitled at law or in equity.
Section 8.11 Time of Essence. With regard to all dates and time periods set forth or referred to in this Agreement, time is of the essence.
Section 8.12 Counterparts; Effectiveness. This Agreement may be executed in two or more identical counterparts, all of which shall be
considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each
other party. In the event that any signature to this Agreement or any amendment hereto is delivered by facsimile transmission or by e-mail
delivery of a “pdf’ format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such facsimile or “pdf” signature page were an original thereof.
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[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of
the date first written above.
PARENT:
AMICAS, INC.
By: /s/ Stephen N. Kahane, M.D.

Name: Stephen N. Kahane, M.D.
Title: Chief Executive Officer
MERGER SUB:
By: /s/ Kevin Burns

Name: Kevin Burns
Title: Chief Financial Officer
COMPANY:
EMAGEON INC.
By: /s/ Charles A. Jett, Jr.

Name: Charles A. Jett, Jr.
[Signature Page to Agreement and Plan of Merger]
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ANNEX A
CONDITIONS TO THE OFFER

Capitalized terms used in this Annex A and not otherwise defined herein shall have the meanings assigned to them in the Agreement to which
it is attached (the “Merger Agreement”).
1. Notwithstanding any other provision of the Offer or the Merger Agreement, Merger Sub shall not be required to accept for payment or,
subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to Merger Sub’s obligation
to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares tendered in connection
with the Offer unless, immediately prior to the expiration of the offering period for the Offer, as the same may be extended from time to time (the
“Expiration Date”):
(a) there shall have been validly tendered (not including any Shares tendered pursuant to procedures for guaranteed delivery) in the
Offer and not properly withdrawn that number of Shares which, together with the number of Shares, if any, then owned beneficially by Parent,
Merger Sub or their Subsidiaries, constitutes at least a majority of the total number of then-outstanding Shares on a fully diluted basis (which
shall mean, as of any time, the number of Shares outstanding, together with all Shares (if any) which the Company would be required to issue
pursuant to any then outstanding warrants, options, benefit plans or obligations or securities convertible or exchangeable into Shares or
otherwise, but only to the extent then so exercisable, convertible or exchangeable) (the “Minimum Tender Condition”);
(b) the applicable waiting period under the HSR Act in respect of the transactions contemplated by the Merger Agreement shall have
expired or been terminated, and any required approvals or consents in respect of the transactions contemplated by the Merger Agreement
shall have been obtained under any applicable Foreign Antitrust Laws (and any applicable waiting periods thereunder have expired or been
terminated).
(c) No Governmental Entity shall have enacted, issued, promulgated, enforced or entered any Law or Order (whether temporary,
preliminary or permanent) which is then in effect that has the effect of (i) making the Merger illegal or otherwise preventing or prohibiting the
consummation of the Merger, (ii) imposing material limitations on the ability of Parent, Merger Sub or any of their respective Subsidiaries or
Affiliates to acquire or hold, transfer or dispose of, or effectively to exercise all rights of ownership of, some or all of the Shares including the
right to vote the Shares purchased by it pursuant to the Offer on an equal basis with all other Shares on all matters properly presented to the
stockholders of the Company. There shall not be pending or threatened in writing (and any such written threat shall have been withdrawn),
any material action or proceeding by any Governmental Entity challenging the making or consummation of the Offer or the Merger or seeking,
directly or indirectly, to result in any of the consequences referred to in clauses (i) or (ii) above;
(d) no Company Material Adverse Effect shall have occurred since the date of the Merger Agreement;
(e) the Company shall not have breached in any material respect any material covenant of the Company contained in the Merger
Agreement unless the breach shall have been cured in all material respects;
(f) (1) The representations and warranties of the Company set forth in Article 3 of the Merger Agreement (i) subject to any qualification
as to “materiality,” “Company Material Adverse Effect” or words of similar meaning set forth therein shall be true and correct, and (ii) not
subject to any such qualification shall be true and correct in all material respects, in each case as of the date of the expiration of the Offer, as if
made at and as of such date (except to the extent expressly made as of an earlier date, in which case as of such date); or
65
(g) the Merger Agreement shall have been terminated pursuant to its terms;
which, in the sole judgment of Parent or Merger Sub, in any case, makes it inadvisable to proceed with the Offer or with acceptance for
payment or payment for Shares.
Immediately prior to the expiration of the Offer, the Company shall deliver to Parent a certificate executed on behalf of the Company by the
Chief Executive Officer and Chief Financial Officer of the Company certifying that the conditions and events set forth in Paragraphs 1(e) and
1(f) of this Annex A shall not exist or have not occurred as of such time and date.
The conditions set forth in this Annex A are for the benefit of Parent and Merger Sub and, regardless of the circumstances, may be asserted by
Parent or Merger Sub in whole or in part at any applicable time or from time to time prior to the Expiration Date, and any condition may be
waived by Parent or Merger Sub in its discretion in whole or in part at any applicable time or from time to time, in each case subject to the terms
and conditions of the Merger Agreement and the applicable rules and regulations of the SEC. The failure of Parent or Merger Sub at any time
to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right
that may be asserted at any time and from time to time. The foregoing conditions shall be in addition to, and not a limitation of, the rights of
Parent and Merger Sub to extend, terminate, amend and/or modify the Offer pursuant to the terms and conditions of the Merger Agreement.
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Exhibit 10.1
SEVERANCE AGREEMENT AND GENERAL RELEASE

This SEVERANCE AGREEMENT AND GENERAL RELEASE (hereinafter referred to as the “Agreement”) is made and entered into by and
between EMAGEON INC. (hereinafter referred to as “Emageon”) and CHARLES A. JETT, JR. (hereinafter referred to as “Employee”).
WHEREAS, on August 10, 2004, Employee entered into an Employment Agreement (the “Employment Agreement”) with Emageon whereby
Emageon employed Employee as Chief Executive Officer; and
WHEREAS, on July 8, 2008, Employee and Emageon entered into an Amendment to Employment Agreement; and
WHEREAS, Emageon has entered into an Agreement and Plan of Merger, dated February 22, 2009 (as amended or supplemented from time
to time, the “Merger Agreement”), with AMICAS, Inc., a Delaware corporation (“AMICAS”), and AMICAS Acquisition Corp., a Delaware
corporation and a direct wholly-owned subsidiary of AMICAS (“Merger Sub”), pursuant to which AMICAS and Merger Sub have agreed to
commence a tender offer (the “Offer”) for all of the outstanding shares of common stock of Emageon (the “Shares”) and, following the
consummation of the Offer, to cause Merger Sub to be merged with and into Emageon, with Emageon as the surviving corporation (the
“Merger”); and
WHEREAS, Employee and Emageon have, in connection with the Merger Agreement, the Offer and the Merger, mutually agreed to
terminate Employee’s employment with Emageon pursuant to the terms of the Employment Agreement; and
WHEREAS, Employer and Employee desire to enter into this Agreement to recite the terms of Employee’s separation and to resolve any
potential disputes and release any potential claims held by the parties as of the date hereof.
NOW, THEREFORE, Emageon and Employee agree as follows:
1. Termination of Employment. Employee’s employment with Emageon shall be terminated effective as of the date on which the Minimum
Tender Condition (as defined in the Merger Agreement) shall have been satisfied and Merger Sub shall have accepted for purchase and
paid for the Shares tendered (and not withdrawn) pursuant to the Offer (the “Separation Date”); provided, that if the Separation Date has
not occurred by the Outside Date (as defined in the Merger Agreement), this Agreement shall become void. Employee acknowledges that,
as of the Separation Date, his employment relationship with Emageon will be permanently severed and that Emageon has no obligation to
rehire or re-employ him in the future.
2. Payment for Accrued Salary. Employee shall receive payment for all of his base salary and any accrued and unused vacation through the
Separation Date, less all applicable statutory withholdings and deductions, in accordance with Emageon’s usual practice for making salary
payments to employees. Employee acknowledges that he is entitled to no additional payments for earned salary or accrued but unused
vacation time except as set forth in this Agreement.
3. Severance Benefits. In consideration of the promises set forth herein, upon the execution of this Agreement and the expiration of the
revocation period described in Section 16(5) below, Emageon agrees to provide Employee with the following severance benefits:
(a) Emageon shall pay Employee as a lump sum the amount of $1,235,500 less all applicable statutory withholdings and deductions, which
is the equivalent of (1) Employee’s monthly base salary plus one-twelfth (1/12) of Employee’s target annual bonus, multiplied by
(ii) twenty-four (24) months; and
(b) Emageon shall pay Employee as a lump sum (i) the amount of $23,203.44, which is equivalent to the cost for Employee to maintain
continuing family health and dental insurance for twenty-four (24) months pursuant to an election of coverage under the
Consolidated Omnibus Benefits Reconciliation Act of 1985, less the Employee’s share of insurance benefits under Emageon’s current
benefit plans; (ii) the amount of $8,000 with respect to life insurance coverage; and (iii) the amount of $33,942.31 for accrued, but
unused vacation; and
(c) Employee will become fully vested in all stock options, stock appreciation rights, restricted stock and restricted stock units held by
Employee as of the Separation Date, subject to the terms and conditions of the plan and award agreements with respect thereto.
Employee hereby acknowledges that the severance benefits provided for herein are conditioned upon his execution of and compliance
with this Agreement and constitute value to which he is not already entitled. Employee further acknowledges that he is entitled to no
additional severance benefits.
The severance benefits provided in this Section are payable to the Employee within 10 days after his Separation Date; provided that in all
events such amounts shall be paid no later than the later of (a) the end of the calendar year in which the Separation Date occurs, or
(b) the 15th day of the third calendar month following such specified date, and provided further that the Employee is not permitted to
designate the taxable year of the payment. Accordingly, it is the intent of Emageon that all payments payable to the Employee pursuant
to this Section shall be exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) as short-term deferrals.
However, if Emageon reasonably determines that any payment to Employee pursuant to this Agreement is not exempt as a short-term
deferral and must be delayed for six-months to avoid a violation of Code Section 409A(a)(2)(B), such payment shall be paid on the next
business day following the six-month anniversary of the Employee’s Separation Date.
3A. Excise Tax Gross Up Payment.
(a) In the event it shall be determined that any payment or distribution by Emageon to or for the benefit of Employee (whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any
additional payments required under this Section 3A (a “Payment”) would be subject to the excise tax imposed by Code Section 4999
or any interest or penalties are incurred by Employee with respect to such excise tax (such excise tax, together with any such interest
and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee shall be entitled to receive an additional
payment (a “Gross-Up Payment”) in an amount such that after payment by Employee of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with
respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Employee retains an amount of the Gross-Up Payment equal to
the Excise Tax imposed upon the Payments.
2
(b) Subject to the provisions of Section 3A(c), all determinations required to be made under this Section 3A, including whether and when
a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be used in arriving at such
determination, shall be made by a certified public accounting firm selected by Employee (other than the Emageon’s regular accounting
firm) and reasonably acceptable to Emageon (the “Accounting Firm”) which shall provide detailed supporting calculations both to
Emageon and Employee within 15 business days of the receipt of notice from Employee that there has been a Payment, or such earlier
time as is reasonably requested by Emageon. All fees and expenses of the Accounting Firm shall be borne solely by Emageon. Any
Gross-Up Payment, as determined pursuant to this Section 3A, shall be paid by Emageon to Employee within five days of the receipt
of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon Emageon and Employee.
As a result of the uncertainty in the application of Code Section 4999 at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments which will not have been made by Emageon should have been made (an
“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Emageon exhausts its
remedies pursuant to Section 3A(c) and Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Emageon
to or for the benefit of Employee.
(c) Employee shall notify Emageon in writing of any claim by the Internal Revenue Service that, if successful, would require the payment
by Emageon of a Gross-Up Payment (or an additional Gross-Up Payment). Such notification shall be given as soon as practicable but
no later than ten business days after Employee is informed in writing of such claim and shall apprise Emageon of the nature of such
claim and the date on which such claim is requested to be paid. Employee shall not pay such claim prior to the expiration of the 30-day
period following the date on which he gives such notice to Emageon (or such shorter period ending on the date that any payment of
taxes with respect to such claim is due). If Emageon notifies Employee in writing prior to the expiration of such period that it desires to
contest such claim, Employee shall: (1) give Emageon any information reasonably requested by Emageon relating to such claim,
(2) take such action in connection with contesting such claim as Emageon shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by
Emageon, (3) cooperate with Emageon in good faith in order effectively to contest such claim, and (4) permit Emageon to participate in
any proceedings relating to such claim; provided, however, that Emageon shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Employee
harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a
result of such representation and payment of costs and expenses. Without limitation of the foregoing provisions of this
Section 3A(c), Emageon shall control all proceedings taken in connection with such contest (to the extent applicable to the Excise Tax
and the Gross-Up Payment) and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Employee to pay the tax claimed
and sue for a refund or contest the claim in any permissible manner, and Employee agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as Emageon shall
determine; provided,
3
however, that if Emageon directs Employee to pay such claim and sue for a refund, Emageon shall, if permitted by law, advance the
amount of such payment to Employee, on an interest-free basis and shall indemnify and hold Employee harmless, on an after-tax
basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or
with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations
relating to payment of taxes for the taxable year of Employee with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, Emageon’s control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and Employee shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by Employee of an amount advanced by Emageon pursuant to Section 3A(c), Employee becomes entitled to
receive any refund with respect to such claim, Employee shall (subject to Emageon’s complying with the requirements of Section
3A(c) promptly pay to Emageon the amount of such refund (together with any interest paid or credited thereon after taxes applicable
thereto). If, after the receipt by Employee of an amount advanced by Emageon pursuant to Section 3A(c), a determination is made that
Employee shall not be entitled to any refund with respect to such claim and Emageon does not notify Employee in writing of its intent
to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up
Payment required to be paid.
(e) Notwithstanding the other provisions of this Section 3A, (i) each Gross-Up Payment required to be made by Emageon to Employee
hereunder and each repayment of a Gross-Up Payment required to be made by Employee to Emageon hereunder shall be paid no later
than the end of the calendar year next following the calendar year in which Employee remits the corresponding taxes to the Internal
Revenue Service, (ii) each reimbursement of expenses related to a tax audit or litigation addressing the existence or amount of a tax
liability required to be made by Emageon to Employee hereunder and each repayment of such a reimbursement required to be made by
Employee to Emageon hereunder shall be paid no later than the end of the calendar year next following the calendar year in which
Employee remits to the Internal Revenue Service the taxes that are the subject of the audit or litigation or, where as a result of the
audit or litigation no taxes are due or are remitted but other reimbursable costs and/or expenses have been incurred, the end of the
calendar year following the calendar year in which the audit is completed or there is a final and nonappealable settlement or other
resolution of the litigation, and (iii) to the extent that any portion of the Gross-Up Payment relates to payments that were triggered by
the Employee’s “separation from service” within the meaning of Code Section 409A(a)(2)(A)(i), payment of such portion of the Gross-
Up Payment which constitutes a “deferral of compensation” within the meaning of Code Section 409A and is not deemed to be
payable upon another permissible payment date under Code Section 409A shall be delayed until the date that is six (6) months after
the Employee’s Separation Date (provided if the Employee dies after his Separation Date but before the Gross-Up Payment is made, it
will be paid to his estate as a lump sum and without regard to any six-month delay that otherwise applies to specified employees).
4. Release of Claims. You hereby agree and acknowledge that by signing this Agreement, and for other good and valuable consideration
provided for in this Agreement, you are waiving and
4
releasing your right to assert any form of legal claim against the Company 1 whatsoever for any alleged action, inaction or circumstance
existing or arising from the beginning of time through the Separation Date. Your waiver and release herein is intended to bar any form of
legal claim, charge, complaint or any other form of action (jointly referred to as “Claims”) against the Company seeking any form of relief
including, without limitation, equitable relief (whether declaratory, injunctive or otherwise), the recovery of any damages or any other form
of monetary recovery whatsoever (including, without limitation, back pay, front pay, compensatory damages, emotional distress damages,
punitive damages, attorneys fees and any other costs) against the Company, for any alleged action, inaction or circumstance existing or
arising through the Separation Date.
Without limiting the foregoing general waiver and release, you specifically waive and release the Company from any Claim arising from or
related to your employment relationship with the Company or the termination thereof, including, without limitation:
(a) Claims under any local, state or federal discrimination, fair employment practices or other employment related statute, regulation or
executive order (as they may have been amended through the Effective Date) prohibiting discrimination or harassment based upon
any protected status including, without limitation, race, religion, national origin, age, gender, marital status, disability, veteran status
or sexual orientation. Without limitation, specifically included in this paragraph are any Claims arising under the federal Age
Discrimination in Employment Act (the “ADEA”), the Older Workers Benefit Protection Act, the Civil Rights Act of 1866 and 1871,
Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Equal Pay Act, the Americans With Disabilities Act, the
Alabama Age Discrimination Act, the Alabama Whistleblower Protection Law and any similar Alabama or other state statute or local
law;
(b) Claims under any other state, federal or local employment related statute, regulation or executive order (as they may have been
amended through the Effective Date) relating to wages, hours or any other terms and conditions of employment. Without limitation,
specifically included in this paragraph are any Claims arising under the Fair Labor Standards Act, the National Labor Relations Act,
the Family and Medical Leave Act, the Employee Retirement Income Security Act of 1974, the Consolidated Omnibus Budget
Reconciliation Act of 1985 (“COBRA”) and any similar Alabama or other state statute or local law;
(c) Claims under any state, federal, local or common law theory including, without limitation, wrongful discharge, breach of express or
implied contract, promissory estoppel, unjust enrichment, breach of a covenant of good faith and fair dealing, violation of public
policy, defamation, interference with contractual relations, intentional or negligent infliction of emotional distress, invasion of privacy,
misrepresentation, deceit, fraud or negligence or any claim to attorneys’ fees under any applicable statute or common law theory of
recovery; and
(d) Any other Claim arising under state, federal or local law.
1 For the purposes of this section, the parties agree that the term “Company” shall include Emageon Inc.., its
divisions, affiliates, parents and subsidiaries, and its and their respective officers, directors, shareholders,
owners, employees, attorneys, agents and assigns.
5
You explicitly acknowledge that because you are over forty (40) years of age, you have specific rights under the ADEA, which prohibits
discrimination on the basis of age, and that the releases set forth in this section are intended to release any right that you may have to file a
claim against the Company alleging discrimination on the basis of age.
Notwithstanding the foregoing, this section does not: (x) release the Company from any obligation expressly set forth in this Agreement or
the Merger Agreement or from any obligation, including without limitation obligations under the Workers Compensation laws, which as a
matter of law cannot be released; (y) prohibit you from filing a charge with the Equal Employment Opportunity Commission (“EEOC”);
(z) prohibit you from participating in an investigation or proceeding by the EEOC or any comparable state or local agency.
Your waiver and release, however, are intended to be a complete bar to any recovery or personal benefit by or to you with respect to any
claim whatsoever, including those raised through a charge with the EEOC, except those which, as a matter of law, cannot be released. In the
event that you successfully challenge the validity of the release with respect to the ADEA, the Company or any affected party sought to
be released hereunder may seek recovery from you of all amounts paid and the cost of any benefits provided pursuant to this Agreement.
Nothing in this Agreement, however, shall limit the right of the Company or any affected party sought to be released hereunder to seek
immediate dismissal of a charge on the basis that your signing of this Agreement constitutes a full release of any rights you might
otherwise have to pursue the charge.
As of the Separation Date, Emageon hereby releases all claims of whatever nature that it may have against Employee which arise out of or
are in any manner based upon or related to the employment relationship between Employee and Emageon, and the conclusion of that
relationship. This waiver and release does not affect those rights or claims which arise after its execution.
5. No Guarantee of Tax Consequences. Notwithstanding any other provision of this Agreement, except for as set forth in Section 3A hereof,
Emageon makes no guarantee of any tax consequences with respect to any payments hereunder including, without limitation, under
Section 409A of the Code.
6. Other Agreements. Employee understands that the agreements that he has signed with Emageon concerning confidentiality, non-
solicitation, security, return of property, ownership of inventions and intellectual property, and the like (including, but not limited to, the
restrictive covenants set forth in Section 7 of the Employment Agreement) are not superseded by this Agreement, and that the terms of
such agreements providing protections to Emageon or imposing obligations on Employee following his separation from employment with
Emageon shall remain in full force and effect according to their terms after his separation from employment with Emageon.
7. No Admission. Neither this Agreement nor any act taken by Emageon or Employee pursuant to this Agreement shall be construed as an
admission of liability or wrongdoing of any kind by Emageon or Employee.
8. Confidentiality. This Agreement and all of its terms and provisions are strictly confidential and shall not be divulged by the Employee or
disclosed in any way to any person other than the Employee’s spouse, tax advisor(s) or legal advisor(s), and the Employee will protect the
confidentiality of this Agreement in all regards. Employee agrees and understands that a breach of this confidentiality provision will be
grounds entitling Emageon to the return of the severance payment recited in Section 3(a) hereinabove and for damages resulting from any
harm to
6
Emageon including, but not limited to, Emageon’s reasonable attorneys’ fees in connection therewith; provided, that the restrictions
imposed by this section shall not be applicable with respect to any portion of this Agreement described in or filed as an exhibit to any
disclosure document of Emageon filed with the Securities & Exchange Commission and made available to the general public.
9. Neutral Reference. If Employee seeks an employment reference from Emageon, he should direct any such request to the Vice-President of
Human Resources for Emageon. Emageon agrees that it will provide a neutral reference consisting only of Employee’s dates of
employment and positions held at Emageon.
10. Non-Disparagement. Employee agrees not to make false, misleading or disparaging statements regarding Emageon, its management
(including individual executives or managers) or practices, and agrees not to take any action that disrupts or impairs Emageon’s normal,
ongoing business operations, or that harms Emageon’s reputation with its employees, customers, suppliers, or the public. Emageon
agrees not to make false, misleading or disparaging statements regarding Employee or that harms Employee’s reputation with potential
employers or the public. Employee and Emageon understand that the foregoing provision does not apply on occasions when Employee or
Emageon (or any of its directors, officers, agents, employees, or consultants) is subpoenaed or ordered by a court or other governmental
authority to testify or give evidence and must, of course, respond truthfully, or to conduct otherwise protected by the Sarbanes-Oxley
Act.
11. Indemnification. Emageon shall indemnify Employee and hold Employee harmless from and against any claim, loss or cause of action
arising from or out of Employee’s performance as an officer, director or employee of Emageon or any of its subsidiaries or other affiliates
or in any other capacity, including any fiduciary capacity, in which Employee served at Emageon during the term of his employment, in
each case to the maximum extent permitted by law, pursuant to Employee’s Employment Agreement, under Emageon’s Certificate of
Incorporation and By-Laws, and in accordance with Emageon’s Directors & Officers Insurance Policy (the “Governing Documents”),
provided that in no event shall the protection afforded to Employee be less than that afforded under the Governing Documents as in effect
on the initial effective date of his Employment Agreement except for changes mandated by law.
12. Entire Agreement. This document constitutes the complete and entire agreement between the parties with respect to Employee’s
termination from employment with Emageon. Notwithstanding the foregoing statement, as provided in Section 6 of this Agreement, this
Agreement does not supersede or extinguish the covenants entered into by Employee in Section 7 of his Employment Agreement.
13. Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the other provisions
of this Agreement shall remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or
degree shall remain in full force and effect to the extent not held invalid or unenforceable.
14. Amendments. This Agreement shall not be modified or amended except by a writing signed by all parties.
15. Governing Law. To the extent state law is not preempted by applicable federal law, this Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of Alabama.
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16. Acknowledgments. Prior to signing this Agreement Employee acknowledges the following: (1) he has read this Agreement, understands
its meaning and intent and freely and voluntarily agrees to its terms and conditions; (2) he has not relied on any statements or
representations made by Emageon other than those contained in this Agreement; (3) he has been advised in writing by Emageon to
consult with an attorney before signing this Agreement; (4) he has been given 21 days from the date he received this Agreement to
consider it; (5) he may revoke this agreement within 7 days after the date that he signs it by sending written notice to the General Counsel
of Emageon at 1200 Corporate Drive, Suite 200, Birmingham, Alabama 35242, stating his intention to revoke the Agreement; (6) if he does
revoke this Agreement, neither Emageon nor Employee will be bound by any of the obligations stated in this Agreement or have any
rights under this Agreement; and (7) this Agreement does not become effective (the “Effective Date”) until the day after his right to
revoke has expired.
[SIGNATURE PAGE FOLLOWS]
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Emageon, by and through its duly authorized officers, and Employee have caused this Agreement to be executed on the date(s) set forth
below.
Employee:
/s/ Charles A. Jett, Jr. February 23, 2009

Charles A. Jett, Jr. Date
Emageon:
EMAGEON INC.
By: /s/ John W. Wilhoite February 23, 2009

John W. Wilhoite Date
Its: Chief Financial Officer
Exhibit 99.1
TENDER AND SUPPORT AGREEMENT

BY AND AMONG
AMICAS, INC.,
AND
[STOCKHOLDER]
DATED AS OF FEBRUARY 23, 2009
INDEX OF DEFINED TERMS
Page
Agreement 1
Beneficial Ownership 1
Beneficially Own 2
Beneficially Owned 2
Common Stock 2
Company 1
Covered Shares 2
Encumbrance 2
Existing Shares 1
Grantees 4
Merger 1
Merger Agreement 1
Merger Sub 1
Parent 1
Representative 1
Section 2.1 Matters 3
Stockholder 1
Transfer 2
i
TENDER AND SUPPORT AGREEMENT, dated as of February 23, 2009 (this “Agreement”), by and among AMICAS, Inc., a Delaware
corporation (“Parent”), AMICAS Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of Parent (“Merger Sub”), and
[___] (the “Stockholder”).
W I T N E S S E T H:
WHEREAS, concurrently with the execution of this Agreement, Parent, Merger Sub and Emageon, Inc., a Delaware corporation (the
“Company”) are entering into an Agreement and Plan of Merger, dated as of the date hereof (as amended, supplemented, restated or otherwise
modified from time to time, the “Merger Agreement”) pursuant to which, among other things, (i) Merger Sub will commence a tender offer (the
“Offer”) to purchase all of the outstanding shares of Common Stock at a price per share equal to the Offer Price and (ii) following acceptance
for payment of shares pursuant to the Offer, Merger Sub will merge with and into the Company (the “Merger”) and each outstanding share of
Common Stock will be converted into the right to receive the Offer Price.
WHEREAS, as of the date hereof, the Stockholder owns beneficially and of record the number of shares of Common Stock set forth
opposite Stockholder’s name on Schedule I hereto (the “Existing Shares”).
WHEREAS, as a material inducement to Parent entering into the Merger Agreement, Parent has required that the Stockholder agree, and
the Stockholder has agreed, to enter into this Agreement and abide by the covenants and obligations with respect to the Covered Shares (as
hereinafter defined) set forth herein and in executing and delivering the Merger Agreement, Parent and Merger Sub are relying on the
agreements contained herein.
NOW THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements herein
contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE I
GENERAL
1.1. Defined Terms. The following capitalized terms, as used in this Agreement, shall have the meanings set forth below. Capitalized terms
used but not otherwise defined herein shall have the meanings ascribed thereto in the Merger Agreement.
“Beneficial Ownership” by a Person of any securities includes ownership by any Person who, directly or indirectly, through any
contract, arrangement, understanding, relationship or otherwise, has or shares (i) voting power which includes the power to vote, or to direct
the voting of, such security; and/or (ii) investment power which includes the power to dispose, or to direct the disposition, of such security;
and shall otherwise be interpreted in accordance with the term “beneficial ownership” as defined in Rule 13d-3 adopted by the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as amended; provided that for purposes of determining Beneficial
Ownership, a Person shall be deemed to be the Beneficial Owner of any securities which such Person has, at any time during the term of this
Agreement, the right to acquire pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise (irrespective of whether the right to acquire such securities is exercisable immediately or only after the
passage of time, including the passage of time in excess of 60 days, the satisfaction of any conditions, the occurrence of any event or any
combination of the foregoing). The terms “Beneficially Own” and “Beneficially Owned” shall have a correlative meaning.
“Common Stock” means the common stock, par value $0.001 per share, of the Company.
“Covered Shares” means, with respect to the Stockholder, the Stockholder’s Existing Shares, together with any shares of Common Stock
or other voting capital stock of the Company and any securities convertible into or exercisable or exchangeable for shares of Common Stock or
other voting capital stock of the Company, in each case, that the Stockholder acquires Beneficial Ownership of on or after the date hereof.
“Encumbrance” means any security interest, pledge, mortgage, lien (statutory or other), charge, option to purchase, lease or other right
to acquire any interest or any claim, restriction, covenant, title defect, hypothecation, assignment, deposit arrangement or other encumbrance
of any kind or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement.
“Representative” means, when used with respect to any Person, the directors, officers, members, managers, employees, consultants,
accountants, legal counsel, investment bankers, lenders or other financing sources, agents and other representatives of such Person, as
applicable.
“Transfer” means, directly or indirectly, to sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of (by merger
(including by conversion into securities or other consideration), by tendering into any tender or exchange offer, by operation of law or
otherwise), either voluntarily or involuntarily, or to enter into any contract, option or other arrangement or understanding with respect to the
voting of or sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of (by merger, by tendering into any tender
or exchange offer, by operation of law or otherwise).
ARTICLE II
TENDER AND SUPPORT
2.1. Tender and Support Agreements.
(a) Agreement to Tender. The Stockholder shall validly tender or cause to be validly tendered in the Offer all of such Stockholder’s
Covered Shares pursuant to and in accordance with the terms of the Offer. As promptly as practicable, but in any event no later than seven
Business Days after the commencement of the Offer, each Stockholder shall (i) deliver to the Depositary designated in the Offer (A) a letter of
transmittal with respect to its Covered Shares complying with the instructions set forth therein and the terms of the Offer, (B) a certificate or
certificates representing such Covered Shares or an “agent’s message” (or such
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other evidence, if any, of transfer as the Depositary may reasonably request) in the case of a book-entry transfer of any uncertificated Covered
Shares, and (C) all other documents or instruments required to be delivered by other stockholders of the Company pursuant to the terms of the
Offer, and (ii) instruct its broker or such other Person that is the holder of record of any Covered Shares beneficially owned by the Stockholder
to tender such Covered Shares pursuant to and in accordance with the terms of the Offer. The Stockholder agrees that, once its Covered
Shares are tendered, such Stockholder will not withdraw any of such Covered Shares from the Offer, unless and until (A) the Offer shall have
expired or been terminated by Merger Sub in accordance with the terms of the Merger Agreement or (B) this Agreement shall have been
terminated in accordance with its terms.
(b) Agreement to Vote. The Stockholder hereby irrevocably and unconditionally agrees that during the time this Agreement is in effect,
at the Company Stockholders Meeting and at any other meeting of the stockholders of the Company, however called, including any
adjournment or postponement thereof, or in any other circumstance in which the vote, consent or approval of stockholders of the Company, in
their capacity as stockholders, is sought with respect to the Merger Agreement or any Takeover Proposal, the Stockholder shall, in each case,
to the fullest extent that such matters are submitted for the vote, written consent or approval of the Stockholder and the Stockholder is entitled
to vote thereon or consent thereto, to the extent any of the Covered Shares have not been purchased in the Offer: (a) appear at each such
meeting or otherwise cause such Covered Shares to be counted as present thereat for purposes of calculating a quorum; and (b) vote in favor
of (or cause to be voted in favor of), in person or by proxy, deliver (or cause to be delivered) a written consent or otherwise approve on behalf
of all of such Covered Shares (i) the adoption of the Merger Agreement and any related proposal in furtherance thereof, as reasonably
requested by Parent, submitted for the vote, written consent or approval of the Company’s stockholders; (ii) against any action, proposal or
agreement submitted for the vote, written consent or approval of the Company’s stockholders that is in opposition to, or would reasonably be
expected to be competitive or materially inconsistent with, the Merger or would result in a breach of any covenant, representation or warranty
or any other obligation or agreement of the Company contained in the Merger Agreement, or of the Stockholder contained in this Agreement;
and (iii) against any Takeover Proposal and against any other action, agreement or transaction submitted for the vote, written consent or
approval of stockholders that would reasonably be expected to impede, interfere with, delay, postpone, discourage, frustrate the purposes of
or adversely affect the Merger or the other transactions contemplated by the Merger Agreement or this Agreement or the performance by the
Company of its obligations under the Merger Agreement or by the Stockholder of its obligations under this Agreement.
2.2. No Inconsistent Agreements. The Stockholder hereby covenants and agrees that, except for this Agreement, and except as may be
permitted by Section 4.3(b) hereof, it (a) has not entered into, and shall not enter into at any time while this Agreement remains in effect, any
voting agreement or voting trust with respect to the Covered Shares with respect to any of the matters described in Section 2.1(b) (the
“Section 2.1 Matters”) or, except with Parent or Merger Sub, any contract, option or other agreement or binding understanding with respect to
any Transfer of any or all of the Covered Shares, (b) has not granted, and shall not grant at any time while this Agreement remains in effect
(except pursuant to Section 2.3), a proxy, consent or power of attorney with respect to the Covered Shares with respect to any of the
Section 2.1 Matters and (c) has not intentionally taken and shall not intentionally take any action that would
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make any representation or warranty of the Stockholder contained herein untrue or incorrect or have the effect of preventing or disabling the
Stockholder from performing any of its obligations under this Agreement.
2.3. Proxy. Without in any way limiting the Stockholder’s right to vote the Covered Shares in its sole discretion on any matters other than
the Section 2.1 Matters that may be submitted to a stockholder vote, consent or other approval, the Stockholder hereby irrevocably appoints
as its proxy and attorney-in-fact, Stephen N. Kahane and Kevin C. Burns, pursuant to a proxy to be delivered to Parent substantially in the
form attached hereto as Annex A, in their respective capacities as officers of Parent, and any individual who shall hereafter succeed to any
such officer of Parent, and any other Person designated in writing by Parent (collectively, the “Grantees”), each of them individually, with full
power of substitution, to vote or execute written consents with respect to the Covered Shares and, in the discretion of the Grantees, with
respect to any proposed postponements or adjournments of any annual or special meeting of the stockholders of the Company at which any
of the Section 2.1 Matters is or was to be considered. This proxy is coupled with an interest and shall be irrevocable until the termination of
this Agreement in accordance with its terms, in which event this proxy shall automatically be revoked without any further action by any party.
The Stockholder will take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy and
hereby revokes any proxy previously granted by it with respect to the Covered Shares with respect to any of the Section 2.1 Matters. So long
as the proxy granted under this Section 2.3 is a valid uncontested proxy that is effective to deliver the votes of the Covered Shares, the
Stockholder shall be deemed to be fulfilling its obligations under Section 2.1(b). If Parent believes that such proxy is not a valid proxy or if
Parent otherwise does not wish to utilize the proxy, Parent will immediately so notify the Stockholder in writing so that the Stockholder will be
able to perform its obligations under Section 2.1(b).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub as
follows:
(a) Organization; Authorization; Validity of Agreement; Necessary Action. The Stockholder has full power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has
been duly executed and delivered by the Stockholder and, assuming this Agreement constitutes a valid and binding obligation of the other
parties hereto, constitutes a legal, valid and binding obligation of the Stockholder, enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization or similar laws affecting the rights of creditors generally and the
availability of equitable remedies (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Ownership. As of the date hereof, the Stockholder’s Existing Shares are, and all of the Covered Shares will be, Beneficially Owned
including owned of record by the Stockholder. The Stockholder has good and marketable title to the Stockholder’s Existing Shares, free and
clear of any Encumbrances. As of the date hereof, the Stockholder’s Existing
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Shares constitute all of the shares of Common Stock Beneficially Owned or owned of record by the Stockholder. Except for the rights granted
to Parent hereby, the Stockholder has and will have at all times through the Closing Date sole voting power (including the right to control such
vote as contemplated herein) with respect to the Section 2.1 Matters, sole power of disposition, sole power to issue instructions with respect
to the Section 2.1 Matters, and sole power to agree to all of the matters set forth in this Agreement, in each case, with respect to all of the
Stockholder’s Existing Shares and Covered Shares.
(c) No Violation. The execution, delivery and performance of this Agreement by the Stockholder does not and will not (whether with or
without notice or lapse of time, or both) (i) violate, conflict with or result in the breach of any of the terms or conditions of, result in any (or the
right to make any) modification of or the cancellation or loss of a benefit under, require any notice, consent or action under, or otherwise give
any Person the right to terminate, accelerate obligations under or receive payment or additional rights under, or constitute a default under, any
Contract to which the Stockholder is a party or by which it is bound or (ii) violate any Law applicable to the Stockholder or by which any of
the Stockholder’s assets or properties is bound, except for any of the foregoing as would not, either individually or in the aggregate, impair the
ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.
ARTICLE IV
OTHER COVENANTS
4.1. Prohibition on Transfers, Other Actions. Except as permitted by Section 4.3(b), the Stockholder hereby agrees not to (i) Transfer any of
the Covered Shares, Beneficial Ownership thereof or any other interest therein, except to participate in the Offer or the Merger; (ii) enter into
any agreement, arrangement or understanding with any Person (other than Parent or Merger Sub), or take any other action, that violates or
conflicts with the Stockholder’s representations, warranties, covenants and obligations under this Agreement; or (iii) take any action that
could restrict or otherwise affect the Stockholder’s legal power, authority and right to comply with and perform its covenants and obligations
under this Agreement. Any Transfer in violation of this provision shall be void.
4.2. Stock Dividends, etc. In the event of a stock split, stock dividend or distribution, or any change in the Common Stock by reason of any
split-up, reverse stock split, recapitalization, combination, reclassification, exchange of shares or the like, the terms “Existing Shares” and
“Covered Shares” shall be deemed to refer to and include such shares as well as all such stock dividends and distributions and any securities
into which or for which any or all of such shares may be changed or exchanged or which are received in such transaction.
4.3. No Solicitation.
(a) The Stockholder hereby agrees that during the term of this Agreement, except as permitted by Section 4.3(b), it shall not, and shall
use its reasonable best efforts to ensure that any of its Affiliates or Representatives do not, directly or indirectly, (i) initiate, solicit, publicly
propose or encourage the submission of a Takeover Proposal, (ii) participate or engage in negotiations with respect to any Takeover Proposal
or (iii) furnish any non-public
-5-
information regarding the Company or the Merger to any other Person; provided, however, that nothing in this Section 4.3(a) shall prevent the
Stockholder, in the Stockholder’s capacity as a director or executive officer of the Company, from engaging in any activity permitted pursuant
to Section 5.3 of the Merger Agreement, and no action by the Company or any of its Affiliates in compliance with Section 5.3 of the Merger
Agreement shall be a violation by Stockholder of this Section 4.3.
(b) Notwithstanding anything in this Agreement to the contrary, in the event the Company Board exercises its rights under Section 5.3 of
the Merger Agreement to (i) furnish information with respect to the Company and its Subsidiaries to any Person, and (ii) participate, engage or
assist in any manner in discussions or negotiations with any Person, in each case, in compliance with Section 5.3 of the Merger Agreement,
then (x) the Stockholder may likewise furnish any such information to such Person and participate, engage or assist in any manner in such
discussions or negotiations with such Person, provided, that any action taken by the Stockholder shall be taken only in coordination with the
Company Board, and (y) in connection with the Company’s termination of the Merger Agreement pursuant to Section 5.3(d) of the Merger
Agreement in order to enter into a transaction which constitutes a Superior Proposal, Stockholder shall be entitled to enter into a voting or
other support agreement with the Person making the Superior Proposal, provided, that the effectiveness of such agreement shall be
conditioned upon the termination of the Merger Agreement in compliance with the Article VII thereof.
4.4. Waiver of Appraisal Rights. The Stockholder agrees not to exercise any rights of appraisal or any dissenters’ rights that the
Stockholder may have (whether under applicable Law or otherwise) or could potentially have or acquire in connection with the Merger.
4.5. Further Assurances. From time to time, at Parent’s request and without further consideration, the Stockholder shall execute and deliver
such additional documents and take all such further action as may be reasonably necessary to effect the actions and consummate the
transactions contemplated by this Agreement.
ARTICLE V
MISCELLANEOUS
5.1. Termination. This Agreement shall remain in effect until the earliest to occur of (i) the Effective Time, (ii) the termination of the Merger
Agreement in accordance with its terms; provided, however, that the provisions of this Article V shall survive any termination of this
Agreement; (iii) six months after the date hereof; or (iv) at the Stockholder’s option, upon written notice by the Stockholder to the Parent from
and after any material amendment, waiver or modification to the terms of the Merger Agreement or any amendment, waiver or modification to
the terms of the Merger Agreement that changes the form of or decreases the amount of payment from what is set forth in the Merger
Agreement of, the Offer Price or the Merger Consideration. Nothing in this Section 5.1 and no termination of this Agreement shall relieve or
otherwise limit any party of liability for willful breach of this Agreement.
5.2. No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Parent or Merger Sub any direct or indirect
ownership or incidence of ownership of or
-6-
with respect to any Covered Shares, except as otherwise provided herein. All rights, ownership and economic benefits of and relating to the
Covered Shares shall remain vested in and belong to the Stockholder, and neither Parent nor Merger Sub shall have any authority to direct the
Stockholder in the voting or disposition of any of the Covered Shares, except as otherwise provided herein.
5.3. Notices.
(a) All notices and other communications hereunder shall be in writing and shall be deemed given when delivered personally, by
facsimile (upon telephonic confirmation of receipt), on the first business day following the date of dispatch if delivered by a recognized next
day courier service or on the third business day following the date of mailing if delivered by registered or certified mail, return receipt
requested, post prepaid. All notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be
designated in writing in accordance with this Section 5.3 by the party to receive such notice.
(i) If to Parent or Merger Sub, to:
AMICAS, Inc.
20 Guest Street, Suite 400
Boston, MA 02135
Facsimile No.: (617) 779-7879
Attn: Chief Financial Officer
With a copy to (which will not constitute notice to Parent or Merger Sub):
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, MA 02111
Facsimile No.: (617) 542-2241
Attn: John R. Pomerance, Esq.
(ii) if to the Stockholder, to the address set forth on Schedule I hereto.
5.4. Interpretation. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of this Agreement, and Section references are to this Agreement unless
otherwise specified. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be
followed by the words “without limitation.” The meanings given to terms defined herein shall be equally applicable to both the singular and
plural forms of such terms. The table of contents and headings contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement. This Agreement is the product of negotiation by the parties having the
assistance of counsel and other advisers. It is the intention of the parties that this Agreement not be construed more strictly with regard to
one party than with regard to the others.
5.5. Counterparts. This Agreement may be executed by facsimile and in counterparts, all of which shall be considered one and the same
agreement and shall become effective when
-7-
counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the
same counterpart. In the event that any signature to this Agreement or any amendment hereto is delivered by facsimile transmission or by e-
mail delivery of a “pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf
such signature is executed) with the same force and effect as if such facsimile or “pdf” signature page were an original thereof.
5.6. Entire Agreement. This Agreement, together with the agreements and other documents and instruments referred to herein or annexed
hereto, embody the complete agreement and understanding among the parties hereto with respect to the subject matter hereof and supersede
and preempt any prior understandings, agreements or representations by or among the parties, written and oral, that may have related to the
subject matter hereof in any way.
5.7. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.
(a) This Agreement, and all claims or causes of action (whether at law, in contract or in tort) that may be based upon, arise out of or relate
to this Agreement or the negotiation, execution or performance hereof, shall be governed by and construed in accordance with the Laws of the
State of Delaware, without giving effect to any choice or conflict of Law provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware.
(b) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of
the Delaware Court of Chancery, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the transactions contemplated by this Agreement, and each of the parties hereby irrevocably and unconditionally (i) agrees not
to commence any such action or proceeding except in such courts, (ii) agrees that any claim in respect of any such action or proceeding may
be heard and determined in such court, (iii) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any such action or proceeding in any such court, and (iv) waives, to the fullest extent permitted by
Law, the defense of an inconvenient forum to the maintenance of such action or proceeding in such court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and may be enforced in any other place of competent jurisdiction by
suit on the judgment or in any other manner provided by Law. Each party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 5.3. Nothing in this Agreement shall affect the right of any party to this Agreement to serve process in
any other manner permitted by Law.
(c) Each party hereto hereby waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of
any Action arising out of or relating to this Agreement. Each party hereto (i) certifies that no representative, agent or attorney of any other
party has represented, expressly or otherwise, that such party would not, in the event of any action, seek to enforce the foregoing waiver and
(ii) acknowledges that it and the other parties hereto have been induced to enter into this Agreement, by, among other things, the mutual
waiver and certifications in this Section 5.7.
-8-
5.8. Amendment; Waiver. This Agreement may not be amended except by an instrument in writing signed by each of the parties hereto.
Each party may waive any right of such party hereunder by an instrument in writing signed by such party and delivered to Parent and the
Stockholder.
5.9. Remedies; Specific Performance. All rights, powers and remedies provided under this Agreement or otherwise available in respect
hereof at law or in equity shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof by any party shall
not preclude the simultaneous or later exercise of any other such right, power or remedy by such party. The parties hereto agree that each of
Parent and Merger Sub would be irreparably damaged if for any reason the Stockholder fails to perform any of its obligations under this
Agreement and that each of Parent and Merger Sub would not have an adequate remedy at law for money damages in such event.
Accordingly, each of Parent and Merger Sub shall be entitled, as their sole remedy under this Agreement for breaches by the Stockholder, to
specific performance and injunctive and other equitable relief to prevent breaches of this Agreement or to enforce specifically the performance
of the terms and provisions hereof.
5.10. Severability. Any term or provision of this Agreement which is determined by a court of competent jurisdiction to be invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of
the terms or provisions of this Agreement in any other jurisdiction, and if any provision of this Agreement is determined to be so broad as to
be unenforceable, the provision shall be interpreted to be only so broad as is enforceable, in all cases so long as neither the economic nor legal
substance of the transactions contemplated hereby is affected in any manner adverse to any party or its stockholders or partners, as
applicable. Upon any such determination, the parties shall negotiate in good faith in an effort to agree upon a suitable and equitable substitute
provision to effect the original intent of the parties as closely as possible and to the end that the transactions contemplated hereby shall be
fulfilled to the maximum extent possible.
5.11. Successors and Assigns; Third Party Beneficiaries. Neither this Agreement nor any of the rights or obligations of any party under this
Agreement shall be assigned, in whole or in part (by operation of law or otherwise), by any party without the prior written consent of the other
parties hereto. Subject to the foregoing, this Agreement shall bind and inure to the benefit of and be enforceable by the parties hereto and
their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer on any Person other
than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason
of this Agreement.
5.12. Stockholder Capacity. The restrictions and covenants of the Stockholder hereunder shall not be binding, and shall have no effect, in
any way with respect to any director or officer of the Company or any of its Subsidiaries in such Person’s capacity as such a director or
officer, nor shall any action taken by any such director or officer in his or her capacity as such be deemed a breach by the Stockholder of this
Agreement.
[Remainder of this page intentionally left blank]
-9-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed (where applicable, by their respective officers or
other authorized Person thereunto duly authorized) as of the date first written above.
PARENT:
AMICAS, INC.
By:
Name: Stephen N. Kahane
MERGER SUB:
By:
Name: Stephen N. Kahane
[STOCKHOLDER]
By:
Name:
Title:
-10-
SCHEDULE I
Name and Address of Stockholder Number of Shares
if to the Stockholder, to:
Attention:
Facsimile: (___) ___-____
With a copy to (which will not constitute notice to the Stockholder):
Attention:
Facsimile: (___) ___-____
ANNEX A
IRREVOCABLE PROXY
Dated as of _______, 2009

The undersigned Stockholder (the “Stockholder”) of Emageon, Inc., a Delaware corporation (the “Company”), hereby irrevocably (to the
fullest extent permitted by law) appoints each of Stephen N. Kahane and Kevin C. Burns, as the sole and exclusive attorneys and proxies of the
undersigned, with full power of substitution and resubstitution, for and in the name, place and stead of the Stockholder, to vote and exercise
all voting and related rights (to the full extent that the undersigned is entitled to do so) with respect to all of the shares of capital stock of the
Company that now are or hereafter may be beneficially owned by the undersigned, and any and all other shares or securities of the Company
issued or issuable in respect thereof on or after the date hereof (collectively, the “Covered Shares”), in accordance with the terms of this Proxy.
The Covered Shares beneficially owned by the Stockholder as of the date of this Proxy are listed on Schedule I to this Proxy. Upon the
Stockholder’s execution of this Proxy, any and all prior proxies given by the undersigned with respect to any Covered Shares are hereby
revoked and terminated, and the Stockholder agrees not to grant any subsequent proxies with respect to the Covered Shares, with respect to
any of the matters referred to in any of clauses (a) through (c) below until after the Expiration Time (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is coupled with an interest and is granted pursuant to that certain Tender
and Support Agreement of even date herewith (the “Voting Agreement”) by and among AMICAS, Inc., a Delaware corporation (“Parent”),
AMICAS Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of Parent (“Merger Sub”), and the undersigned
Stockholder, and is granted in consideration of Parent entering into that certain Agreement and Plan of Merger of even date herewith (as it
may hereafter be amended from time to time in accordance with the provisions thereof, the “Merger Agreement”) by and among Parent, Merger
Sub and the Company. The Merger Agreement provides that Merger Sub will merge with and into the Company (the “Merger”) and the
Stockholder will be entitled to receive the merger consideration specified therein. The term “Expiration Time”, as used in this Proxy, shall mean
the earliest to occur of the events specified in Section 5.1 of the Voting Agreement.
The attorneys and proxies named above, and each of them, are hereby authorized and empowered by the Stockholder, at any time prior to
the Expiration Time, to act as the Stockholder’s attorney and proxy to vote all of the Covered Shares, and to exercise all voting, consent and
similar rights of the undersigned with respect to all of the Covered Shares (including, without limitation, the power to execute and deliver
written consents) at every annual or special meeting of stockholders of the Company (and at every adjournment or postponement thereof),
and in every written consent in lieu of such meeting:
(a) in favor of the adoption of the Merger Agreement and any related proposal in furtherance thereof, as reasonably requested by Parent,
submitted for the vote, written consent or approval of the Company’s stockholders;
(b) against any action, proposal or agreement submitted for the vote, written consent or approval of the Company’s stockholders that is in
opposition to, or would reasonably be expected to be competitive or materially inconsistent with, the Merger or would result in a breach of any
covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger Agreement, or of the
Stockholder contained in the Voting Agreement; and
(c) against any Takeover Proposal and against any other action, agreement or transaction submitted for the vote, written consent or
approval of stockholders that would reasonably be expected to impede, interfere with, delay, postpone, discourage, frustrate the purposes of
or adversely affect the Merger or the other transactions contemplated by the Merger Agreement or the Voting Agreement or the performance
by the Company of its obligations under the Merger Agreement or by the Stockholder of its obligations under the Voting Agreement.
Any term or provision of this Proxy that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or
enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is
invalid or unenforceable, the Stockholder agrees that the court making such determination shall have the power to limit the term or provision,
to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Proxy shall be
enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the Stockholder agrees to
replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible,
the economic, business and other purposes of such invalid or unenforceable term.
The restrictions and covenants of the Stockholder hereunder shall not be binding, and shall have no effect, in any way with respect to any
director or officer of the Company or any of its Subsidiaries in such Person’s capacity as such a director or officer, nor shall any action taken
by any such director or officer in his or her capacity as such be deemed a breach by the Stockholder of this Proxy.
Any obligation of the Stockholder hereunder shall be binding upon the successors and assigns of the Stockholder.
This Proxy shall terminate, and be of no further force and effect, automatically upon the Expiration Time.
[signature page follows]

COUNTERPART SIGNATURE PAGE

IN WITNESS WHEREOF, the Stockholder has caused this Irrevocable Proxy to be duly executed as of the day and year first above written.
[STOCKHOLDER]
By:
Name:
Title:
with a copy to:

AMICAS, Inc.
20 Guest Street, Suite 400
Boston, MA 02135
Facsimile No.: (617) 779-7879
Attn: Chief Financial Officer
With a copy to (which will not constitute notice to Parent or Merger Sub):
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, MA 02111
Facsimile No.: (617) 542-2241
Attn: John R. Pomerance
SCHEDULE I
Name and Address of Stockholder Number of Shares
if to the Stockholder, to:
Attention:
Facsimile: (___) ___-____
With a copy to (which will not constitute notice to the Stockholder):
Attention:
Facsimile: (___) ___-____
Exhibit 99.2
Emageon Inc. and AMICAS, Inc. released the following joint press release on February 23, 2009:
AMICAS Announces Definitive Agreement to Acquire Emageon Inc.
(AMICAS LOGO)
BOSTON, MA UNITED STATES
Strategic acquisition will significantly expand AMICAS’ presence in image and information management market
BOSTON, and BIRMINGHAM, Ala., Feb. 23 /PRNewswire-FirstCall/ — AMICAS, Inc. (Nasdaq: AMCS), a leader in radiology and medical
image and information management solutions, and Emageon Inc. (Nasdaq: EMAG) announced today that they have entered into a definitive
merger agreement for AMICAS to acquire Emageon Inc., a leading provider of technology solutions for hospitals and healthcare networks.
Under the terms of the agreement, a subsidiary of AMICAS will commence a tender offer to acquire all of the outstanding shares of Emageon
common stock for $1.82 per share in cash, for a total of approximately $39 million. The board of directors of Emageon has unanimously
recommended that shareholders tender their shares in the offer. AMICAS ended 2008 with a cash, cash equivalents, and marketable securities
balance of approximately $55 million and no long term debt.
“AMICAS and Emageon have a shared vision that is focused on providing outstanding image and information management solutions in
healthcare,” said Stephen Kahane MD, president, chief executive officer, and chairman of AMICAS. “We at AMICAS are extremely excited
about joining forces with Emageon, and we believe that our combined offerings are in line with the future of imaging and will result in great
innovation for our combined customer base and the future of the market.”
AMICAS’ acquisition of Emageon will create a leading healthcare IT vendor, with more than 1,000 customers, that offers one of the most
comprehensive image and information management solutions on the market. The combined solution suite will include radiology PACS,
cardiology PACS, radiology information systems, cardiology information systems, revenue cycle management systems, referring physician
tools, business intelligence tools, and enterprise content management capabilities.
“Emageon and AMICAS are two of the largest independent image and information management companies in the market,” said Chuck Jett,
chief executive officer and president of Emageon. “We believe that the combined companies will be able to capitalize more fully on the
opportunities in the industry by combining our resources, scale, and knowledge.”
“Emageon’s significant market presence in providing radiology and cardiology IT solutions to large IDNs complements AMICAS’
comprehensive solutions for radiology practices, imaging centers, and hospitals,” said Dr. Kahane. “Together, we have a presence in virtually
every location where imaging services are provided to patients. We will be able to offer a comprehensive set of solutions to meet virtually
every image and information management need healthcare providers have when they are delivering the best quality of healthcare possible to
their patients — while managing their business in an optimal manner.”
Under the terms of the agreement, AMICAS will commence a tender offer by March 5, 2009. The minimum tender condition shall be fulfilled
upon the valid tender of a majority of the total number of shares of common stock of Emageon outstanding on a fully diluted basis. The
transaction, which is subject to customary conditions, is expected to close in the second quarter of 2009. In connection with the transaction,
certain shareholders representing approximately 18 percent of the Emageon shares outstanding have agreed, among other things, to tender
their shares in the offer.
AMICAS will host a conference call to discuss the acquisition on Monday, February 23, 2009, at 4:30 p.m. (Eastern Time).
Conference Call:
— Conference Call-in Number: 866.952.7525 (Conference ID: 7AMICAS)
— Webcast access at http://www.videonewswire.com/event.asp?id=56379

— Also available at http://www.amicas.com/
Replay:
— Telephone Replay Number: 800.723.8184 (Conference ID: 7AMICAS)
— Telephone replay will be available from 5:30 p.m. (Eastern Time) on February 23, 2009, until 11:59 p.m. (Eastern Time) on March 23,
2009.
— Webcast replay will be available from 5:30 p.m. (Eastern Time) on February 23, 2009, until 11:59 p.m. (Eastern Time) on March 23,
2009, at http://www.amicas.com/investorrelations/.
About AMICAS, Inc.
AMICAS, Inc. (www.amicas.com) is a leader in radiology and medical image and information management solutions. The AMICAS One
Suite(TM) of products provides a complete, end-to-end solution for imaging centers, ambulatory care facilities, and radiology practices. Acute
care and hospital clients are provided with a fully integrated, hospital information system-independent PACS that features advanced
enterprise workflow support and scalable design. Complementing the AMICAS solution suite is AMICAS Professional Services(TM), a set of
client-centered professional and consulting services that assist our customers with a well-planned transition to a digital enterprise.
About Emageon Inc.
Emageon provides information technology systems for hospitals, healthcare networks, and imaging facilities. Its enterprise family of solutions
includes RadSuite(TM), HeartSuite(TM), and other specialty suites. All Emageon solutions are built on a unified Enterprise Content
Management system offering advanced visualization and infrastructure tools for the clinical analysis and management of digital medical
images, reports, and associated clinical content. Emageon’s standards-based solutions are designed to help customers enhance patient care,
automate workflow, lower costs, improve productivity, and provide better service to physicians. For more information, please visit
www.emageon.com.
Important additional information:
This press release is neither an offer to purchase nor a solicitation of an offer to sell shares of Emageon. The tender offer for shares of
Emageon’s stock described in this press release has not yet been commenced.
At the time the tender offer is commenced, a subsidiary of AMICAS intends to file with the SEC and mail to Emageon’s stockholders a Tender
Offer Statement on Schedule TO and related exhibits, including the offer to purchase, letter of transmittal and other related documents, and
Emageon intends to file with the SEC and mail to its stockholders a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 in
connection with the transaction. These documents will contain important information about AMICAS, Emageon, the transaction and other
related matters. Investors and security holders are urged to read each of these documents carefully when they are available.
Investors and security holders will be able to obtain free copies of the Tender Offer Statement, the Tender Offer Solicitation/Recommendation
Statement and other documents filed with the SEC by AMICAS and Emageon through the web site maintained by the SEC at www.sec.gov. In
addition, investors and security holders will be able to obtain free copies of these documents by contacting the Investor Relations
departments of AMICAS or Emageon.
AMICAS CONTACT:
Aine Cryts
Marketing Communications Manager
617.779.7878
acryts@amicas.com
EMAGEON CONTACTS:
Investor Contacts
John Wilhoite
Chief Financial Officer
205.980.9222
john.wilhoite@emageon.com
Media Contacts
Bill Funderburk
Director, Marketing and Public Relations
205.980.7542
bill.funderburk@emageon.com

EMAGEON INC 8-K (Events or Changes Between Quarterly Reports) 2009-02-24

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Delaware 0-51149 63-1240138

1200 Corporate Drive, Suite 200, Birmingham, Alabama 35242

Item 1.01 Entry Into a Material Definitive Agreement.

Tender and Support Agreements

Item 8.01 Other Events.

Item 9.01. Financial Statements and Exhibits.

Exhibit 99.1 Form of Tender and Support Agreement

Exhibit 99.2 Press release dated February 23, 2009

Date: February 24, 2009 EMAGEON INC.

By: /s/ John W. Wilhoite

Exh ibit No. Description

99.1 Form of Tender and Support Agreement

99.2 Press release dated February 23, 2009

AGREEMENT AND PLAN OF MERGER

ARTICLE IA THE OFFER 8

ARTICLE II THE MERGER 13

ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY 19

Section 3.21 Interested Party Transactions 34

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB 37

ARTICLE VI CONDITIONS TO THE MERGER 54

ARTICLE VII TERMINATION, AMENDMENT AND WAIVER 55

ARTICLE VIII MISCELLANEOUS 59

TENDER AGREEMENT EXHIBIT A

COMPANY CERTIFICATE EXHIBIT B

COMPANY OFFICERS, DIRECTORS AND AFFILIATES EXHIBIT C

CONDITIONS TO THE OFFER ANNEX A

AGREEMENT AND PLAN OF MERGER

De fin e d Te rm S e ction De fin e d Te rm S e ction

De fin e d Te rm S e ction De fin e d Te rm S e ction

Section 3.10 Absence of Certain Changes.

Section 3.13 Benefit Plans.

If to Parent or Merger Sub, to: If to the Company, to:

AMICAS, Inc. Emageon Inc.

Sirote & Permutt, PC

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

By: /s/ Stephen N. Kahane, M.D.

AMICAS ACQUISITION CORP.

By: /s/ Kevin Burns

By: /s/ Charles A. Jett, Jr.

[Signature Page to Agreement and Plan of Merger]

CONDITIONS TO THE OFFER

SEVERANCE AGREEMENT AND GENERAL RELEASE

[SIGNATURE PAGE FOLLOWS]

/s/ Charles A. Jett, Jr. February 23, 2009

By: /s/ John W. Wilhoite February 23, 2009

TENDER AND SUPPORT AGREEMENT

INDEX OF DEFINED TERMS

[Remainder of this page intentionally left blank]

AMICAS ACQUISITION CORP.

Name and Address of Stockholder Number of Shares

if to the Stockholder, to:

With a copy to (which will not constitute notice to the Stockholder):

Dated as of _______, 2009

[signature page follows]

COUNTERPART SIGNATURE PAGE

with a copy to:

Name and Address of Stockholder Number of Shares

if to the Stockholder, to:

With a copy to (which will not constitute notice to the Stockholder):

AMICAS Announces Definitive Agreement to Acquire Emageon Inc.

— Webcast access at http://www.videonewswire.com/event.asp?id=56379

About AMICAS, Inc.

About Emageon Inc.